*-:-«ir.;.^. 


1 


.A-r.^*-:.^:"**-'-^''  J 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


TIIK 


L   A    A\ 


J 


OF 


LANDLORD    AND    TENANT; 


TO    WiriCH    IS    ADDED, 


AN  APPENDIX  OF  PRECEDENT?. 


BY  WILLMM  lyOODFALL, 

OF  THE  MIDDLE  TEMPLE,  ESQ.  BARRISTER.  AT  LAM'. 


FIRST   AMERICAN,    FROM   THE   FOURTH    LONDON    EDITION, 
WITH  CONSIDERABLE  ALTERATIONS  AND  ADDITIONS. 


A-EirroRA' 

PFBLI6HED    BY    ROBERT    M'DERMUT   AND    D.    D.    ARDEN'. 
NO.   1,   CITY-HOTEL,    BROADWAY, 

litac  A    Kollock,  Printer. 

]81G. 


T 

W5553L 

l?(6 


VnVKRTTSI'.AfKM 


a"0  •)  UK  KOIIClll   KIMTION, 


SiNCK  tlic  publication  of  the  last  edition  of  tins 
work,  many  important  Cases  liave  been  decicied, 
afFectin^  tlic  Law  of  Landlord  and  Tenant.  TlKsr- 
have  been  carefully  collected  and  added  to  tlie 
text.  Several  passa^ijes  have  been  omitted,  v»  liich 
did  not  ajipear  to  have  a  proper  relation  to  the  sub- 
ject of  this  treatise,  and  much  new  matter  has  been 
introduced. 

An  entirely  new  Index  has  been  framed,  upon 
a  more  concise  and  simple  plan  than  the  former 
one,  and  which,  it  is  pre:-umed,  will  be  found 
greatly  to  increase  the  facility  of  reference ;  on 
which  the  utility  of  a  publication  of  this  nature  so 
muci)  depends.  In  other  respects,  attention  has 
been  paid  to  the  revision  and  correction  of  the 
work ;  and  it  is  hoped  that  "  2'he  Law  of  Land- 
lord and  TmanC  is  now  presented  to  the  public 
in  a  more  improved  and  perfect  state. 

Trinity  Vacation. 
1814. 


G75731 
TAW 


CONTENTS. 


Sect. 

II. 

Sect. 

III. 

Sect. 

I. 

Sect. 

II. 

ClIAPJ'F.ll  I. 
Sect.  I.         IS rnODUCTORY  observations  on  leases 

in  general  ...  -         -  1 

Of  the  requisites  to  a  lease,  and  how  it  mai/  be 
made  .-----* 

0/rei(istering  leases        -         •         •         -        io 

CHAPTER  II. 
0/  agreements  for  leases,  and  the  remedies 

thereon        ...---       130 
Of  the  stamps  required  to  leases,  and  agree- 
ments for  leases  -  -  -  -        w»l 

CHAPTER  III. 
Of  the  Parties  to  a  Lease  ;    wherein  hy  nhom  a 

Lease  may  he  made. 
Sect.  I.  Who  may  make  leases,  and  herein  of  leases 

made  bi/  tenant  in  fee-simple  -         -       3 1 

Sect.  II.       Of  leases  made  by  tenant,  in  tail      -         -      il). 
Sect.  HI.     Of  leases  by  tenarit  in  tail  after  possibility  of 

issue  cxiinet         -         -         -         -  -       4* 

Sect.  IV.     Of  leases  by  tenant  for  life,  absolute  or  con- 
tingent       ------      ib. 

Sect.  V.  Of  leases  by  tenants  pour  auter  vie  -  -  43 
Sect.  VI.  Of  leases  by  tenant  by  the  courtesy  of  Eng- 
land, in  doner  or  jointure  -  -  -  ib. 
Sect.  VII.  Of  leases  under  powers  .  -  -  -  d*! 
itci.  WW.  Of  leases  by  tenants  for  years  -  -  -  0:2 
Sect.  IX.     Of  leases  by  tenant  froyn  year  to  year,  or  for 

a  less  term  -         -         -         •         -      ib. 

Sect.  X.      Of  leases  by  corporations  -         -         -       63 

Sect.  XI.  Of  leases  by  ecclesiastical  persons  -  -  67 
Sect.  XII.  Of  leases  by  trustees  of  charities  •  -  7o 
Sect.  XIII.  Of  leases  by  married  nomcn,  and  husbands 

seised  in  right  of  them  -         -         -       75 

^^ci.  XIY.  Of  leases  by  infants  a7id  guardians  -  -  70 
Sect.  XV.  Of  leases  by  executors  or  administrators  •  82 
Sect.  XVI.  Of  leases  by  inortgngors  and  mortgagees     •      ib. 


CONTENTS. 

Sect.  X\  II.    Of  leases  by  tenants  by  elegit,  sLalulc  mer- 

ehant,  and  statute  staple,  Sec.       -         -      85 

Sect.  XVIII.  Of  leases  by  copyholdc  rs;  nherein  of  licence    ib. 

Sect.  XIX.      Of  leases  by  joint-tenants,  coparceners,  and 

tenants  in  common  -         -         -      89 

Sect.  XX.        Of  leases  pursuant  to  authority  ;  nherein  of 

leases  by  attornics,  agents,  Src.  •      92 

CHAPTER  IV. 

To  n/iom  leases  may  be  made       -         -         -         -         -      95 

CHAPTER  A  . 

Of  the  Suhjed- Matter  of  Leases. 
Sect.  I.     Of  corporeal  hereditaments  ;  nherein  of  farms, 

lands,  houses,  and  lodgings       -         -         -    100 
Sect.  II.  Of  incorporeal  hereditaments  ;  nherein  of  ad- 

vonsons,  tithes,  Src.         _         -         .         -    103 

CHAPTER  VI. 

For  what  Term  Leases  may  he  made. 

Sect.  I.     Of  terms  for  life,  and  how  created         -         -    110 
Sect.  II.  Of  terms  for  years  absolutely,  or  on  condition, 
wherein  of  the  commencement,  duration,  and 
termination  of  them,  and  of  the  surrender 
and  rencnal  of  leases      -         -         -         -     115 

CHAPTER  A  II. 

For  iilial  Terms  Leases  may  he  made  (continued). 

Sect.  I.      Of  tenants  from  year  to  year;  wherein  of  notice 

to  quit -    1G3 

Sect.  II.  Of  tenants  for  a  less  term;  wherein  of  lodgings  17  T 
iitci.  III.  Of  strict  tenants  at  will  -  .  -  -  180 
Sect.  IV.  Of  tenants  at  sufferance       -         -        -         -    183 

CHAPTER  VIII. 

Of  the  general  Incidents  to  Leases. 

Sect.  I.  ReM,  when  and  how  payable  -  -  -  184 
Sect.  II.  Of  taxes  --..,.  197 
Sect.  III.  Of  the  poor's  rates 201 

CHAPTER  IX. 

Of  the  general  Incidents  to  Leases  (continued). 

Sect  I.       Of  waste;  nherein  oj fixtures    -         -         -    2t7 


CONTENTS. 


I   xtr 


Se(t.  II.     C)f  common  of  est  ovirs         ....  2J2 
Sect.  III.  OjcinOUtnents  2.iT 

CHAPTER  X. 

Of  Ihc  i^cueral  Incidents  lo  Ijcases  (continued). 

Sect.  1.      Of  Implied  eovnuints  and  at^recmeuts       •  -  2V,\ 

Seel.  II.   ()/' exprejs  cove/innt^  and  (icfrecments        -  -  liiCt 

Cli.VI'TER  XI. 

Of  (issii;nmf7ils  and  under-leases,  and  in  nftnt  eases  as- 
silences  are  hound  bij  covenants^  or  may  take  ad- 
varitacrc  of  them;  iihethcr  the  assic^nment  or 
under-lease  be  absolute,  or  bi/ waj/  of  mortt^are     1^7. ') 

CHAPTER  XII. 

Of  changes  happening'  hi/  marriage,  bankrupted/,  insolien- 
cij,  or  death  ;  n  herein  of  assignees,  devisees, 
e.vfcjitors  and  administrators,  and  in  nhnt  cases 
the//  arc  bound  b//,  and  may  take  advantage  of, 
covnuints  ......  239 

CHAPTER  XIII. 

Of  the  Remedies  for  and  against  Landlord  and 

Tenant. 
First,     Of  remedies  for  the  landlord  for  recovery  qfrcnt 
Sect.  I.      By  distress;  ivhcrein  of  pound-breach  and  res- 
cue          30i 

Sect.  II.    Of  the  action  of  debt,  where  the  lease  is  by  deed  323 
St'Ct.  III.  Of  the  action  of  covenant,  nhera  the  lease  is  by 

deed 335 

Sect.  IV.  Of  the  action  of  debt,  for  use  and  ocatpation    -  31o 
Sect.  \  .    Of  the  action  of  assumpsit,  for  use  and  occupa- 
tion         3ia 

CHAPTER  XIV. 

Of  the   Rcuu dies  for  and  against' Landlord  and 

Tenant ;  n  herein 

Of  the  actions  of  ejectment  and  trespass  for  mesne  pmrus.  for 

recovery  of  rent  and  possession 
Sect.  I.       Of  the  fiction  of  cjfctment  at  common  liin  -  3-54 

Sect.  II .      IJ'ho  may  defend  the  action  of  ejectment,  ^-c.      3S-i 
Sect.  III.    Of  the  actionfor  mesne  projits  -         -  418 

Sect.  IV.    Of  a  second  action  of  ejcetnunt  -         -  422 

Sect.  V.      Of  the  action  of  ejcrtnunt  upon  the  statvtc-,  4< 

Ci.  2.  o.  .';?8.s.  ?. \2i^ 


.^ii  CONTENTS. 

Sect.  VI.  Of  the  remedy  for  the  landlord,  under  the  sta- 
tute 11  G.  2.  c.  19. 7vhere  the  premises  are 
vacant -429 

CHAPTER  XV. 

Of  the  Remedies  for  and  against  Landlord  and 
Tenant  (continued). 

For  the  landlord,  for  the  breach  of  covenants  and  agreements, 

other  than  for  rent 
Sect.  I.     Of  the  action  of  covenant      -         -         .         -  431 
Sect.  II.  Of  the  action  of  assumpsit     -         -         -         -  4i3 

CHAPTER  XVI. 

Of  the  Heme  dies  for   Waste. 
Sect.  I.       Of  the  action  of  ivaste,  on  the  statute  <?/" Glou- 
cester, and  trover  for  waste      -         -         -  41:0 
Sect.  II.     Of  the  action  upon  the  case  in  the  nature  of 

waste  ......  4,55 

Sect.  III.   Of  the  remedies  in  equity,  in  the  case  of  waste     ib. 
CHAPTER  XVII. 

Of  the  Landlord's  Remedy  against  Third  Persons. 

Sect.  I.  By  action  on  the  case  for  nuisances  to  the  in- 
jury of  his  reversion        .         .         .         ..  4G1 

Sect.  I].  Of  the  action  on  the  case  aqainst  the  sheri§\ 
for  removing  goods  under  an  execution, 
without  paying  n  year"* s  rent,  by  virtue  of 
the  statute  8  Ann.  c.  14         -         -         -  405 

Sect.  III.  Tiie  landlord's  remedy  on  the  statute  11  G.  2. 
c.  ]  9.  touching  goods  fraudulently  carried 
off  the  premises     -----  469 

CHAPTER  XVIII. 
Of  the  Remedies  for  Tenants  against  Landlords, 
Sect.  I.       Of  the  action  of  replevin    -         -         -         -  473 
Sect.  II.     Of  the  writs  in  replevin      -         -         -         -  480 
Sect.  III.  Of  the  verdict  and  judgment  in  replevin          -  498 
Sect.  IV.    Of  the  remedies  where  the  pledges  prove  in- 
sufficient        504 

CHAPTER  XIX. 

Of  the  Remedies  for  Tenants  against  Landlords 
(continued). 
of  the  remedies  for  an  unfouiuled,  irregular,  or  exces- 
sive distress  -----  50? 
Sect.  J.       for  rent  pretended  to  be  arrear  -         -    ib. 


CONTENTS.  1111 

Sect.  II.  For  other  supposed  riff ht  lo  distrain        -         t  509 

CHAPTER  XX. 

Of  the  Remedies  for  Teneints  against  Landlords 

(continued). 
Of  the  tcnanVs  remedies  by  action  of  covenmit  or  assump- 
sit, according  as  the  lease  is  bf/dccd,  or  nilhout 
deed  -         -         -         -         -         -         -517 

CHAPTER  XXI. 

Of  t/ic  J^emedies  for  Teueints  against  Third 
Persons. 
Sect.  I.     Of  distress  for  damage  feasant ;  and  rcscous  -  520 
Sect.  II.  Of  trespass  for  immediate  injuries  to  the  te- 
nant's possession,  and  case  for  consequential 
ones 523 

CHAPTER  XXII. 

•  Of  Remedies  against  Third  Persons ;     \' 

wherein  of 
Forcible  entry  and  detainer         -         -         .         -         .  535 

CHAPTER  XXIII. 

Of  Remedies  against  Third  Persons ; 
ivhcrein  of                                        '■■ 
Obstruction  of  a  right  of  nay,  and  of  the  actions  of  tres- 
pass, and  on  the  ca^c,for  disturbing  a  right  of 
n-ay  54-i 

CHAPTER  XXIV. 

Of  liability  to  repair  the  church,  ami  of  the  right  to  pens 

therein 517 


*f 


APPENDIX  OF  rUECEDKNT?. 


AflREEMEXT  for  a  lease  of  a  house  ami  field         -  ool 
for  a  farming  lease  ...  5,52 

to  let  lodgings  ...    ooi-^.j.i 

J  lease  for  years  of  a  house  and  lands  in  the  eountn/,  nith 

the  exeeption  of  trees y  and  special  eovenants  ooo 
yin  itidorscinentfor  continuing  a  lease  for  a  longer  term, 

after  the  expiration  of  the  present      -         -  /iO? 
A  building  lease         -         •         •         -         -         -         -  SGI- 

Lease  of  a  house  in  t0)vn      ..---.  SOS 
An  indorsement  to  continue  the  term  of  an  expiring  lease  573 
Covenant  by  the  lessee  not  to  use  or  assign  the  premises 

for  any  offensive  trade        •         -         -         -  57'1 
An  assignment  of  leasehold  interest  by  deed-poll  indorsed 

on  the  lease      -         -         -         -         -  -  57.5 

I'orms  of  notices  to  fjuit,  f!rc.        .         .         .         .         .  570 

Jlon  to  make  a  distress  for  rent-arrear,  and  of  the  sale 

of  the  same  -         -         -         -         -  570 

Precedaits  of  pleadings  in  replevin  -         -         -  583 

Proceedings  in  ejectment  .....  ,=^()^2 


THi; 


h  A  W 


ov 


LANDLORD    AND    TENANT, 

Si'c.   SCc.   S)'C. 


CHAPTER  1. 

Section  I.     Introductory  Observations  on  Leases  in 


general. 


DEFlXlTlOXof  a  Lease— X  lease  is  a  contract  for  the  popsession 
and  profits  of  lands  and  tenements  on  the  one  side,  and  a  reconij)ense  of 
rent  or  other  income  on  the  other ;  or  it  is  a  conveyance  of  lands  and 
tenements  to  a  person  for  life,  or  years,  or  at  will,  in  consi<leration  of  a 
return  of  rent  or  other  recompense.  The  party  kttinp,  the  land  is  called 
the  lessor  or  landlord,  and  the  party  to  whom  the  lease  is  made,  the 
lessee  or  tenant. 

Antiquitij  of  Leases,  <^e. — It  has  generally  been  supposed,  that  the 
connexion  between  landlord  and  tenant  has  gradually  improved  from 
that  of  master  and  slave  into  a  state  of  total  independence,  and  mutual 
interest  in  the  soil.  In  support  of  this  opinion,  we  are  told  (a)  that  lands 
were  originally  occupied  by  bondmen; -but  as  these  men  derived  no 
profit  from  their  labour,  and  had  consequently  no  interest  in  being  in- 
dustrious, it  became  necessary  to  have  a  free  man  to  manage  the  farm, 
who  probably  at  first  had  some  acres  set  apart  to  him  for  his  mainte- 
nance and  \\  ages.  In  progress  of  time,  it  w  as  found  more  politic  to  give 
him  an  interest  in  the  produce,  first,  by  allowing  him  a  certain  propor- 
tion in  place  of  wages,  and  ultimately,  by  reserving  to  the  master  a 
yearly  quantity  certain,  and  permitting  the  servant  to  .clain  the  over- 
plus. One  further  step,  necessary  to  bring  this  contract  to  its  due  per- 
fection, was  to  give  the  servant  a  lease  for  years,  without  which  he 
was  not  secure  that  his  industry  would  turn  to  his  own  jirofit.     Ky  a 


2  Introductory  Observations  [Chap.  I. 

contract  in  these  terms  he  acquired  the  name  of  tenant,  because  he 
was  entitled  to  liold  the  possession  for  years  certain. 

But  the  notion  that  the  cultivation  of  the  ground  was  formerly  car- 
ried on  by  slaves  alone,  is  contradicted  by  the  evidence  afforded  by  the 
records  and  monuments  of  the  middle  ages,  (a)  which  prove,  that  while 
slavery  existed  in  this  country,  there  were  also  tenants  and  free  labourers 
of  t lie  ground,  who  held  their  lands  under  lease.  It  appears  that  the 
practice  of  letting  lands  was  known  among  the  ancient  British:  a  pro- 
prietor of  lands  being  permitted  to  let  them  for  a  year  at  his  pleasure, 
though  he  could  not  alien  or  charge  them  (A).  Those  who  formerly 
held  large  districts  and  tracts  of  land,  being  unacquainted  with  the  arts 
of  husbandry  and  tillage,  found  it  their  interest  to  lease  out  their  de- 
mesnes, which,  for  want  of  care  and  cultivation,  lay  waste,  and  afforded 
them  little  or  no  profit.  These  leases  were  granted  for  years  ;  this  mode 
of  Jetting  being  thought  best  to  answer  the  designs  and  intentions  of 
the  lord,  as  well  as  the  expectations  of  the  tenant :  for  if  they  had  let 
them  for  life,  this  had  given  the  tenants  too  great  a  power  over  the 
lord,  because  then  they  would  have  had  a  property  in  the  freehold,  and 
by  suffering  disseisins  or  feigned  recoveries  to  be  had  against  themselves, 
might  have  shaken  or  endangered  the  inheritance  of  the  owner  ;  and  on 
the  other  side,  if  they  had  leased  their  land  only  at  will,  few  would 
have  chosen  to  bestow  any  great  pains  or  industry  upon  so  precarious 
a  possession,  which  the  arbitrary  will  and  pleasure  of  a  peevish  lord 
might  have  defeated  (r). 

(d)  Thus,  these  estates  ^\cre  originally  granted  to  mere  farmers  or 
husbandmen,  who  every  year  rendered  some  equivalent  in  money,  pro- 
visions, or  other  rent,  to  the  lessors  or  landlords;  but  in  order  to  en- 
courage them  to  manure  and  cultivate  the  ground,  they  had  a  per- 
manent interest  granted  them,  not  determinable  at  the  will  of  the 
lord.  Their  possession,  however,  was  esteemed  of  so  little  conse- 
qi'.cncc,  that  they  were  rather  considered  as  bailiffs  or  servants  who 
wcve  to  receive  and  account  for  the  profits  at  a  settled  price,  than  as 
having  any  property  of  their  own:  they  Mere,  therefore,  not  allowed 
to  have  a  freehold  estate,  but  their  interest,  such  as  it  was,  vested 
after  their  deaths  in  their  executors,  who  were  to  make  up  the  accounts 
of  their  testator  with  the  lord,  and  his  other  creditors,  and  were  en- 
titled to  the  stock  upon  the  farm.  The  lessee's  estate  might,  also,  by 
the  ancient  law,  be  at  any  time  defeated  by  a  common  recovery  suf- 
fered by  the  tenant  of  the  freehold  ;  which  annihilated  all  leases  for 
years  then  subsisting,  unless  afterwards  renewed  by  the  recoverer, 
whose  title  was  supposed  to  be  superior  to  his  by  whom  those  leases 
vcre  granted. 

While  estates  for  years  were  thus  precarious,  it  is  no  wonder  thai 

(n)  See  noil  on  leases,  C.  I.  (6)  1  Whit.  Mancli.  s.  i.  p.  3t7. 

''•1  n?r    ;ibr.  Tif  !-,ta.t,-  T.  2B!.ro»  ll'? 


Sect.  1.]  OM  Leases  in  gcnerai.  A 

they  were  usually  very  Fhort,  like  our  niodtrn  leases  upon  rack  rent ;  and 
indeed,  wc  arclold  that,  by  tiic  ancient  Iu\v,(</)  no  leases  for  more  than 
forty  years  were  allow al)lc,  because  any  lon.;cr  possession,  (cHpe- 
cially  when  given  without  any  livery  declarini;  the  nature  and  duration 
of  the  estate,)  niisjht  tend  to  defeat  the  inheritance.  licsides,^S(ifh 
leases  were  only  made  to  serve  the  occasions  and  exigencies  of  tlie  lord 
in  cnllivating  and  improving  his  demesnes  ;  (A)  not  to  borrow  i!ioney 
upon,  or  to  raise  portions  for  daughters,  or  such  other  uses  as  are  now 
made  thereof:  therefore  tlierc  was  no  need  to  extend  them  to  any  great 
length  of  time,  sirsce  they  mij;ht  be  renewed  as  often  as  occasion  re- 
quired ;  the  lessees  likewise,  if  they  were  evicted,  being  only  to  recover 
damages,  it  would  have  been  fruitless  to  prolong  leases  fjr  the  term  of 
a  thousand  years,  ^\hen  the  persons  who  would  have  to  possess  under 
such  leases  had  no  remedy  for  their  damages,  i)iit  by  recourse  to  the 
representatives  of  the  original  lessor.  Tlie  law ,  however,  that  restrict- 
ed the  duration  of  leases  for  years  to  forty  years,  if  it  ever  existed,  was 
soon  antiquated  :  (r)  lor  we  may  observe  in  3Iadox's  Collection  of  An- 
cient Instruments,  some  leases  for  years  of  an  early  date,  which  con- 
■  siderably  exceed  that  period  ;  and  long  terms  for  three  hundred  years 
or  a  thousand,  were  certainly  in  use  in  the  time  of  Edward  III.,  and 
probably  of  Ednard  I.  But  undoubtedly  when  by  the  statute  21  I[. 
8.  c.  1.3.  the  termor  (that  is,  he  who  is  entitled  to  the  term  for  years) 
was  i)rotccted  against  these  fictitious  recoveries,  and  his  interest  was 
rendered  secure  and  permanent,  lont;  terms  began  to  be  more  frequent 
than  before  ;  and  were  afterwards  extensively  introduced,  being  found 
(  xlremely  convenient  for  family  settlements  and  mortgage^. 

Kut  though,  at  this  day,  terms  for  years  arc  nudtiplied  to  a  niucJi 
longer  duration  than  they  were  formerly,  and  there  is  ample  reniedy  to 
recover  the  term  itself,  yet  the  succession  contimies  the  same;(f/)  for 
besides  the  reason  alreatly  given,  it  w  ould  be  inconvenient  to  have  had 
one  rule  of  ])roperty  for  siiort  terms,  and  anotiicr  for  those  tluit  were 
longer,  being  all  of  the  same  nature,  and  still  no  more  than  leases  for 
years.  The  difllculty,  also,  of  fixing  the  just  bounds  to  any  precise 
determinate  number  of  years  occurs,  since  one  or  two  years,  more  or 
less,  woidd  have  made  very  little  dilfercnce  in  reason,  were  the  bounds 
aiBxed  to  leases  of  never  so  long  a  continuance  ;  and  long  or  short  arc 
only  terms  of  comparison,  as  a  lease  for  forty  years  is  long  w  ith  respect 
to  one  of  eight  or  ten  years,  and  yet  short  with  respect  to  another  of  a 
hundred  years ;  therefore,  that  there  might  be  an  uniformity  in  tlic 
law,  all  leases  for  years  are  held  to  be  of  less  value  than  estates  for 
life,  behig  originally  of  much  shorter  duration  ;  and  also  because 
they  were  under  the  power  of  the  tenant  of  the  freehold  to  destroy,  and 
htrcfore  are  considered  only  as  chattels,  and  cast  upon  the  executor. 

(a)  a  ni  Com   \i2.  (6)  B«c.  Abr  Tit   I.r»j<i». 

[c]  2  iil.  Com.  \ai  (4)  U«-.  Abr    Tii    I  i-a^ri. 


4  Of  the  Requisiks  to  a  Lease,  [Chap.  I. 

Section  II.     Of  the    Requisites   to   a  Lease,  and  how  it 

may  he  made. 

In  every  lease  it  is  requisite  that  there  should  be,  1.  A  lessor  able  to 
grant  it.  2.  A  lessee  capable  of  accepting  it.  3.  A  subject-matter  that 
Ls  demiseable.  4.  There  must  also  be  the  needful  ceremonies,  &c. ; 
as  where  a  freehold  estate  is  created  by  lease,  livery  of  seisin  must  be 
given  to  the  lessee  :  and  where  a  lease  is  for  a  term  of  years  there  must 
be  an  entry  ])y  him. 

No  lease  is  good  unless  it  contains  a  sufficient  degree  of  certainty,  as 
to  its  beginning  and  ending  ;  though  it  may  determine  prior  to  the 
period  for  which  it  is  granted,  in  consequence  of  a  proviso  or  condition  ; 
and  all  modern  leases  contain  a  proviso  enabling  the  lessor  to  re-enter 
and  determine  the  lease  on  non-payment  of  rent,  or  breach  of  the  cove- 
nants (rt).  It  is  immaterial  m  hetlier  any  rent  be  reserved  upon  a  lease 
for  life,  years,  or  at  will,  or  not ;  except  only  in  the  cases  of  leases  made 
by  tenant  in  tail,  husband  and  wife,  and  ecclesiastical  persons:  of  which 
Jicrcafter. 

Bij  nhat  n'ords  made. — The  usual  words,  (U)  whereby  a  lease  is  made, 
arc  "  demise,  grant,  and  to  farm  let,"  and  Avhatsoever  words  amount 
to  a  grant  may  serve  to  make  a  lease.  Farm,  ferme,  fearme, /inna,  is 
derived  of  the  Saxon  word  "  fcorman"  to  feed,  or  relieve  ;  because,  in 
ancient  time,  they  reserved  upon  tlieir  leases,  cattle  and  otKcr  victual 
and  provision  for  their  sustenance,  so  that  a  i?jiXn\tT,firmarius,  was  one 
who  held  his  lands  upon  payment  of  a  rent  or  feorme,  though  at  pre- 
sent, by  a  gradual  departure  from  the  original  sense,  the  word  "  farm" 
is  brought  to  signify  the  very  estate  or  lauds  so  holden  upon  farm  or 
rent:  and  this  word  "  farm,"  in  a  will  is  sufiicient  to  pass  a  leasehold 
estate,  if  it  appear  to  have  been  the  testator's  intention  that  it  should 
£0  pass  (c). 

Here,  it  may  be  laid  down  for  a  rule,  that  m  hatever  words  are  suf- 
ficient to  explain  the  intent  of  the  parties,  that  the  one  shall  divest  him- 
self of  the  possession  and  tlic  other  come  into  it,  for  such  a  determinate 
time,  whether  they  run  in  the  form  of  a  license,  covenant,  or  agreement, 
are  of  themselves  sufficient,  and  will,  in  construction  of  law,  amount  to 
a  lease  for  years  as  cii'tctuaily  as  if  the  most  proper  and  pertinent  words 
had  been  made  use  of  for  that  purpose. 

Thus  the  word  <'  duW  is  said  to  be  a  sufficient  v.ord  to  make  a  lease 
for  years  (cC). 

So,  a  license  to  inhabit  amounts  to  a  lease  (c). 

U  therefore  one  "  license"  another  to  enjoy  such  a  liou-^e  or  land  from 

(n)  Cruis  Dig.  Lfato  (fc)  Co.  Lit.  45.    Ibid  5.    SBlaclc.  318. 

(c;  6  T.  11.345.  ('0  Co.  Lit.  301.  H 

'r    4  Rurr  S20a.     1  Mod.  M      I]  Mod.  42.     ILd.  naym40l     J  Salk  :1M. 


Sect.  II.]  and  how  il  may  be  mndt.  :, 

,ich  a  lime  to  such  a  linif;,  il  is  a  le:"c ;  («)  f.)r  it  is  a  ccrt-iin  i^P'icnt 
interest,  and  out;ht  to  he  pleaded  as  a  lea^ie:  il  may,  h-iuovtr,  \>c 
pleaded  as  a  licence  ;  and  if  it  l»c  pleaded  as  a  lease  for  years  and  tra- 
vtTfetl,  the  lessee  may  give  the  licence  in  evidence  to  prove  it. 

The  words  **  covenant,  grant,  and  a<;rce"  that  J.  shall  have  the 
lands  for  so  many  years,  are  apt  words  to  make  a  lease  for  yeju-f,  and 
enure  as  a  lease  (i). 

The  word  "covenant"  will  make  a  lease,  though  the  words  " -r^nt 
and  agree"  be  omitted  (r). 

So,  a  covenant,  "  tu  stand  seihttl"  ( ulcrid  into  by  the  oMner,  is  a 
lease  (r/). 

Covenant  and  entry  amonnl  to  a  lease  :  Imt  a  lease  mertjly  docs  not 
vest  the  estate  in  the  lessee,  but  only  gives  him  a  right  to  enter  and 
possess  it. 

These  words  in  an  instrument,  "  be  it  remembered  that  *  .-/.  IL 
hath  let  and  by  these  presents  doth  demise,  <<jr."  -were  held  to  operate 
as  a  present  demise ;  although  the  instrument  contained  a  further  co- 
venant for  a  future  lease  [c). 

So,  w  hen  one  by  articles,  covenants,  grants,  and  agrees  with  /.  5". 
that  he  shall  have  such  lands,  or  have,  hold,  and  enjoy  such  lands  tor 
so  many  years,  these  words  are  sufficient  to  shew  a  present  contract  for 
the  lessee's  enjoyment  of  these  lands,  (/)  and  therefore  amount  to  a 
present  lease  of  them.  The  difFcrence  is,  where  such  articles  by  way 
of  covenant,  are  made  by  him  who  is  owner  of  the  lands,  and  where 
they  arc  made  l)y  a  stranger,  who  has  then  nothing  in  the  lauds  :  in  the 
firstcasethey  amount  to  a  present  and  absolute  lease ;  but  not  in  the 
other,  because  a  man  cannot  be  supposed  to  lease  what  he  has  not ;  or 
if  it  might  be  so  supposed,  yet  \\hcn  it  appears  in  the  very  articles  that 
lias  nothing  in  the  lands,  his  covenant  then  can  have  no  other  construe, 
lion,  but  that  he  will  procure  the  owner  of  the  lands  to  permit  the  cove- 
nantee to  hold  and  enjoy  those  lands. 

It  is,  indeed,  settled,  that  words  in  an  agreement  "  that  A.  shall  hold 
and  enjoy,  kc."  if  not  accompanied  by  restraining  words,  operate  as 
wonlsof  present  dcmisi'(£,'). 

A  memorandum  was  entered  into,  whereby  J.  agreed  to  let,  and  B. 
agreed  to  take  a  piece  of  land  for  a  certain  term,  at  the  yearly  rent,  &.c. 
And  for  and  in  consideration  of  a  lease  to  be  granted,  li.  agreed  to  lay 
out  a  sum  of  money  in  building,  and  J.  agreed  to  grant  a  lease  when 
the  houses  were  covered  in,  and  /i.  to  take  such  lease.  ''  The  agree- 
ment to  be  considered  binding  till  one  fully  prepared  could  be  pro- 
duced." This  vas  held  to  amount  to  an  actual  demise  ;  the  intention 
appearing  to  be  that  the  tenant,  who  was  to  expend  so  much  capital 

(n)  P,«<-  Ahr  Tit  I,e»5P8.  (6)  Cro.  Jac.  ?1  (<•)  2  .Mo-I  •: 0 

(d)  3  Burr.  UlC.  'fV.  T  R   I»5  (v'")  Cr"  if   rr     Cro  Cnr.  207. 

(ff)5T.  R.1S3. 


G'  Of  the  Requisites  to  a  Lease,  [Chap.  I. 

upon  the  premises  within  a  givcin  time,  sliouUl  have  a  Icial  interest  ia 
tJic  term  ;  thougli  u  hen  a  certai'}  progrens  was  made  iu  the  l)uildii)j3's  a 
juorc  forma!  Ica?e,  in  which  tiie  premises  mi-ht  lie  more  fuily  descrihed 
for  the  convenience  of  underletting  or  assigning  might  be  executed  (^()- 

So,  \\herc  one  agreed  to  let,  and  also  upon  demand  to  execute  a  lease 
of  a  farm,  vScc.  which  lease  was  to  contain  tlie  usual  covenants,  Sec. 
i)ut  it  was  stipulated  that  ihc  agreement  siiould  be  binding  until  the 
lease  should  be  executed : — it  was  held  to  be  a  present  demise,  the 
agreement  for  a  future  lease  with  further  covenants  being  for  the  better 
security  of  the  parties  (Jj). 

A  pajier  writing  M'as  entitled  "  IMemorandum  of  an  Agreement  be- 
tween J.  and  IL  and  signed  by  them,  expressing  that  iii  consideration 
of -10/.  A.  doth  aj^ree  to  let,  and  B.  doth  agree  to  tat;e  a  messuage,  &c. 
at  40/.  per  annum  rent,  and  it  is  further  agreed  that  A.  shall  not  raise 
the  rent  nor  turn  out  B.  so  long  as  the  rent  is  duly  paid  cp.iarterly,  and 
he  docs  not  sell  any  article  injurious  to  J.  in  his  businc^;s  :"  though  tlie 
terms  do  not  exclude  the  construction  of  actual  demise,  yet  the  impoi  fc 
of  tiic  whole  looking  to  some  future  instrument,  and  a  more  permanent 
interest,  than  from  year  to  year,  a  demurrer  to  a  bill,  for  specific  per- 
formance again.-t  .7.  ulio  had  succeeded  in  an  ejectment,  was  over- 
ruled (r). 

A  deed  that  tlic  person  sliall  "  hold  and  enjoy  the  prcmis'^s  from 
seven  years  to  seven  years,  for  and  during  the  term  of  forty-nine 
j-ears,"  with  a  proviso  "  that  it  shall  be  void  on  paynient  of  so  mucJi 
money,"  though  intended  only  as  a  collateral  security,  amounts  to  a 
present  lease  (r/). 

One  made  his  will  in  this  manner:  1  have  made  a  lease  to  J.  S.  for 
term  of  twenty-one  years,  paying  but  20^.  rent;"  this  was  held  a  good 
lease,  or  demise  by  will,  for  twenty-one  years;  ami  that  the  Avord 
"  have"  should  be  taken  in  the  present  tense,  as  dcdi  is  in  a  deed  of 
feoIT'ment,  to  comply  with  the  intent  of  the  testator  {r)j. 

A  devise  of  "  the  issues  and  profits"  of  land  passes  the  land  itself; 
for  to  liave  the  issues  and  profits  and  to  have  the  land  is  all  one  (/). 
l^Sliiarc,  A\'ould  not  it  be  the  same  of  a  lease  by  such  words,  as  they 
vould  he  tantamount  to  "  enjoy,"  especially  if  a  rent  were  reserved  ?] 

So,  if  a  grant  be  made  of  a  boilery  of  salt,  the  land  passes,  for  that  is 
l]ie  whole  profit  (§■). 

Any  one  may  now  lease  or  convey  his  land,  and  reserve  to  himself 
tlie  right  of  cnt<;ring  to  kill  game  w  ithcut  being  subject  to  be  sued  as  a 
trcspassfj. 

Articles  by  which  "  it  is  covenanted  and  agreed  that  A.  "  doth  let  the 

[a)  12  Ka^t.  n.  171.  (6)  15  lal.  II.  2ii.  (c)  U  Vez.  ir.fi.  403. 

(rf)  Cro.  Jac.  172.    2  Mod.  C.  (0  Rac.  on  Leases,  IC3. 

[f)  1  Cro.  EJi».  I  JO.  is)  Co.  Lit.  4  b. 


Sect.   11.]  aiitl  /,oir  if  ,/nti/  In  ntiuli.  - 

f^aid  lands,  $.€,:'  amount  to  an  iniinrdiafe  lease  (,,)  and  a  ;,ro  /vo  tl.  ii 
the  lessee  «  shall  pay  the  paid  .-/.  annually,  .'tc."  is  a  good  iT..erva1iou 
of  rent,  and  not  a  crn.dilion  :  one  of  the  judges,  howot  cr,  held  it  to  l.t: 
;>  reservation  and  a  Cf)ndili..n  also  ;  as  inanothn-  ruse,  where  .x pro-.'h.y 
.n\m\  uith  words  of  covenant  made  it  a  eon.ljtion  and  a  eov.  n ,!.! 

.r.^  ,iri  ..-r.Tninil  fo  giant  a  Icare,  u  hereby  the  lessor  did  let  and  set. 
for  tucnty-one  years  lioni  a  future  day,  shall  he  a  lease  in  pra.rufi,  if 
the  circumstances  shew  the  party's  intent  so  to  he  f!j). 

Hut  althou-h  no  sjieeilic  wor«l6  arc  necessary  to  create  a  lease,  ycl 
(here  niiibt  he  words  which  shew  an  Intention  tcj  denii<-c 

Therefore  where  a  lessee  of  tithes  ai,Meed  with  the  owner  of  lands, 
for  certain  collateral  considerations,  not  to  take  tithes  in  khid  from  tl:c 
tenants  of  their  lauds  for  twelve  years,  hut  to  accept  a  reasonahie 
composition  not  exceeding  3s.  G  /.  per  acre  ;  this  was  adjiid;;ed  to  lie 
no  lease  :(c)  for  1st,  the  rent  affected  to  he  reserved  is  uncertain  ;  nnder 
this  agreement  it  is  at  the  option  of  the  party  either  to  ])ay  tithes  in 
kind,  or  to  tender  the  reasonable  value  of  tJie  tithes,  wiiich  may  Ijc 
imder  3s.  Vni  per  acre  ;  2dly,  the  owner  of  the  lands,  the  person  witli 
Avhom  the  agreement  is  made,  is  neither  to  enjoy  any  thing  nor  pay  any 
rent;  it  cannot,  therefore  i)e  a  demise  to  liim.  It  can,  at  tlie  idmosf , 
amount  to  no  more  than  a  mere  covenant  with  J.  that  Z>.  sliali  ejijov, 
and  creates  no  lease  to  eitlier. 

So,  where  articles  were  draw  n  between  //.  and  I],  in  tlds  manner  : — 
(r/)  Articles  agreed  upon,  ^r.  Tviprimis^  A.  doth  demise  such  a  close 
to  B.  to  have  it  for  forty  years,  and  a  rent  reserved  with  a  clause  (»f 
distress,  t^-c.  In  witness  whereof,  A'-r.  And  afterwards  Avas  written 
on  the  same  paper  a  njemorandum,  that  these  articles  are  ordered  by 
counsel  of  both  parties,  according  to  due  form  of  law  :  here,  because, 
tlic  intent  of  both  parties  appeared  by  that  memorandum,  and  by  a 
lea?c  actually  drawn  by  counsel,  but  never  sealed,  (upon  some  dis- 
agreement ])etween  the  parties,)  it  was  ruled  by  the  court,  upon  evi- 
dence in  ejectment,  that  these  articles  were  not  a  sufficient  lease,  and 
the  jury  foimd  accordingly. 

So,  where  one  made  a  lease  for  life,  <^'-  projisum  est,  that  if  tlic 
lessee  die  within  sixty  years,  then  his  executors  and  assigns,  slumld 
enjoy  the  land  in  his  right  for  so  many  years  as  should  be  behind  of 
the  sixty  year-  from  the  date  of  the  lease  ;  this  was  held  to  be  only  a 
covenant  and  no  lease  ;(<")  for  which  divers  reasons  are  assigned  in  tho 
books;  the  best  liowcvcr  seems  to  be,  that  he  having  in  the  first  part 
of  tlic  deed  made  a  lease  in  express  and  proper  words,  mnst  be  sup- 

(a)  Cro.  Eliz.  iCfi  S85.    Cro.  Car.  SQ7.  S.  C. 

(6)  2ni  Rc'ii.  -iTj.  (ti  Araf'r  a;-" 

(V)  6ii'-.  Abr  fit.  •'Lav.        '  ioid. 


8  Of  the  Rtquisiks  to  a  Lease.,  [Chap.  L- 

posed  lo  mean  fonicthing  less  in  the  last  part  of  the  deed,  ^vhich  varies 
so  widely  in  the  form  of  expression,  and  Avhich  has  a  natural  and 
proper  rceaning  of  its  own  as  a  covenant,  but  cannot  amount  or  come 
lip  to  a  Iea?c,  without  violetice  and  force  done  to  the  words,  as  well  as 
the  intent  of  the  parties.  This  seems  the  more  probalile,  because  it  is 
held  clearly,  that  if  it  had  been  provided  that  if  the  lessor  die  within 
sixty  years,  that  then  he  demised  the  land  to  another,  (who  was  also  a 
j)arty  to  the  deed)  for  so  many  of  the  sixty  years  as  should  be  then  to 
come,  this  would  be  a  good  lease  ;  for  here  he  conies  into  the  very  same 
form  of  expression  made  use  of  in  tlie  first  part  of  the  deed,  which  was 
an  actual  demise,  and  therefore  must  be  supposed  to  mean  the  same 
thing  in  the  latter  part  too,  and  consequently  such  words  would  make 
it  an  actual  demise. 

In  one  case  it  is  said,  that  though  a  grant  "  to  have  and  to  hold" 
land  for  years  be  a  good  lease,  yet  a  grant  to  "  enjoy"  lands  in  the 
same  manner  is  but  a  covenant ;  («)  [Init  unless  it  be  with  reference  to 
a  stranger,  it  is  conceived  that  this  opinion  is  erroneous,  if  the  case  itself 
be  rightly  reported.] 

For,  a  covenant  "  tijat  a  stranger  shall  enjoy  such  land  for  so  many 
years  at  such  a  rent,"  docs  not  amount  to  a  lease,  but  a  covenant  (/;). 

It  is  said  also,  that  a  covenant  "  that  he  shall  permit  the  covenantee 
himself  to  hold  the  land  for  so  many  years,"  does  not  amount  to  a 
lease;  for  it  sounds  only  in  covenant  :(c)  [but  this  seems  doubtful  at 
this  daj',  not  merely  because  a  license  to  inhabit  amounts  to  a  lease,  but 
because  Xhc  intention  of  the  parties  clearly  is  that  the  one  grants  and  the 
other  accepts  a  lease.] 

An  article  (d)  "  that  he  is  content  A.  shall  have  a  lease  for  six  years, 
that  the  rent  sliall  be  lOZ."  docs  not  amount  ts  a  lease  ;  for  it  ap- 
pears to  be  only  instructions  for  a  lease. 

So,  "  I  agree  to  let  my  land,"  this  is  no  lease,  (r) 

So,  an  agreement  or  covenant  made  between  J.  and  B.  that  C.  shall 
have  such  land  for  years  ;  this  being  made  between  strangers  cannot 
amount  to  a  lease(/). 

So,  if  A.  covenants  with  B.  that  his  executors  shall  have  such  land 
for  twenty-one  years,  this  cannot  amount  to  a  lease  (p-). 

A  Txnsc ;  how  vmde. — A  lease  may  be  made,  either,  1.  by  deed ;  2. 
by  writing  without  deed  ;  or  3.  by  parol  demise. 

A  deed  is  a  writing  sealed  and  delivered  by  the  parties.  Deeds 
are  either  deeds  poll,  or  deeds  indented.  The  former  are  com- 
monly used  where  the  granting  party  only  seals,  and  there  is  no  need 
of  tlic  other  party's  sealing  a  counterpart,  the  nature  of  the  trans- 

(<i)  Cro.  Jao.  1/2.  (6)  Cora.  Dig.  tit.  Eitales  (G.  1.)  (c)  Ibid. 

(•i)  Ibid.  (e)  Cro.  Eliz.  I4G,  (/)  Ibid.  n3.- 

(3)  iKifi 


,Soct.  U.j  nniil  how  il  may  fie  made.  ^ 

action  requiring  no  covenant  from  liim.  It  can  therrforc  rarcl}'  happen 
tliat  alcasc  is  made  by  (letd  \m\\ ;  since  leasee  generally  contain  a  varie- 
ty of  mutual  covcnants.-^AVhtn  a  lease  is  cjranted  by  indenture,  two 
parts  or  copies  aro  made,  one  of  which  is  executed  by  the  lessor,  and 
delivered  to  the  Icis.'e,  and  id  called  the  original;  the  other  is  executed 
by  the  lessee,  and  delivered  to  the  lessor,  and  is  called  the  counterpart. 
.Sonulimes  each  part  i;3  executed  by  all  parties,  \\liich  renders  them 
bolii  originals. 

As  every  lease  is  presumed  to  be  by  deed,  till  the  contrary  be  shewn, 
so«very  deed  that  is  pleaded  .shall  be  intended  to  be  a  deed-poll,  un- 
less it  be  alleged  to  be  indented  {a).  Whenever  a  lease,  therefore,  i^ 
j)lcaded  as  an  indenture,  il  must  be  so  alleged  (J>). 

Parts  of  a  Lease. — A  lease  by  deed  indented  consists  of  the  follow- 
ing parts  :  1.  the  premises ;  2.  the  habendum  and  tenendum  ;  %.  redden- 
</»?/.',  or  rcscrvat ion  ;  4-.  covenants;  and  o.  j)rovi6oes  or  conditions. 

The  premises  of  a  lease  are  all  the  parts  that  precede  the  habendum  (r). 
The  ollice  of  this  part  of  tlie  lease  is  rigidly  to  nainc  the  lessor  and 
lessee,  and  to  comprehend  the  certainly  of  the  thing  demised,  either  by 
express  words,  or  by  that  whicji  by  reference  may  be  reduced  to  a 
certainty  ;  and  the  exception,  or  thing  excepted,  if  there  beany.  Tiie 
recital  also  if  there  be  any,  is  for  the  most  part  contained  in  tlic 
prenn'sts. 

((/)  A  lease  to  one  for  life  habendum  to  his  three  sons  successively,  but 
omitting  to  mention  the  sons  in  the  premises  of  the  deed,  was  held  to 
be  for  the  life  of  the  father  only,  and  that  the  eons  should  not  take  in 
possession  or  by  way  of  remainder  :  for  it  being  limited  to  the  father 
for  his  life,  that  was  a  greater  estate  than  for  the  lives  of  others ;  and 
the  three  sons  were  named  as  persons  to  have  an  estate,  and  not  to  make 
a  limitation  of  an  estate. 

The  habendum  et  tenendum  \s  that  part  of  the  lease,  {e)  which  begins 
with  "  to  have  and  to  hold,"  and  properly  succeeds  the  premises.  Th<* 
oHicc  of  the  habendum  is  to  name  the  lessee,  and  to  limit  tlic  certainty 
of  the  estate.  It  may  aU-o  abridge  or  alter  the  generality  of  the  pre- 
mises (/).  The  habendum^  in  short,  limits,  enlarges,  ascertains,  and 
fixes,  the  mcain'n'j;  of  the  premises,  but  it  cannot  contradict  them.  The 
tenendum  was  formerly  used  to  denote  the  lord  of  whom,  and  the  tenure 
by  which,  the  estate  was  to  be  holden,  which  has  lonjj  been  unnecessa- 
ry ;  it  is  retained  merely  by  custom. 

If  a  man  have  a  lease  for  years  of  land,  and  he,  reciting  this,  by  the 
premises  of  the  deed  grants  all  his  estate  in  the  land,  to  have  and  to 
hold  the  land  or  the  term  after  his  death,  or  for  part  of  the  time  only  ; 

(a)  \  Sir  555.  (b)  Cro.  Eliz  6:.8.  (r)  ghep.  Touch   7.. 

{d^  Cro.  Eliz.  M^  (()  shcp  Toij«h  :»  Cc^   Di?.  Ul.  Kait.  (K.  J  > 

^ >  LoBt   li»i. 


10  Of  the  litquisiks  to  a  Least,  [Cliap.  I. 

Ml  this  cdsf  the  habendum  is  void,  aiul  the  whole  estate  passes  ijnnjedi- 
atciy  Ijy  the  premises  («). 

An  exception  is  a  clause  in  a  deed,  whereby  the  lessor  excepts  sonie- 
Ibintc  ^^^  ^*'  ^li'^t  which  lie  Jias  granted  before  by  tlic  deed :  and  being 
llie  act  and  words  of  the  lessor,  shall  be  taken  strict] ij  against  him  {b). 
JJut  (r)  w  here  aw  exception  does  not  defeat  the  grant,  or  is  contrary  to 
ii,  it  must  stand.  In  every  good  exception,  these  things  must  aluavs 
tonciir  ;  1.  the  exception  must  be  by  apt  words,  as  "  saving  and  ex- 
cepting," A''( .  2.  it  must  be  of  ])art  of  the  thing  demised,  and  not  of 
some  other  thing  ;  3.  it  must  be  part  of  the  thing  only,  and  not  of  all, 
Hie  greater  part,  or  the  eflect  of  the  thini  granted  :  an  exception  there- 
Tore,  in  a  lease,  M'hich  extends  to  the  ^vhole  thing  demised,  is  void  ;  [d) 
1.  it  must  be  of  such  a  thing  as  is  severable  from  the  premises  demised,, 
and  not  of  an  inseparable  incident ;  5.  it  must  be  of  such  a  thing  as  he 
that  doth  accept  may  have,  and  which  properly  belongs  to  him.  It  must 
be  of  a  particular  thing  out  of  a  general,  and  not  of  a  particular  thing 
out  of  a  particular  thing;  G.  it  must  be  certainly  described  and  set 
down  :  tlurcrore,  if  one  demise  a  manor  excepting  one  acre,  without 
setting  forth  which,  or  what  acre  it  shall  be,  the  exception  is  void. 
But  (0  if  a  man  be  possessed  of  a  new  house  and  an  old  house,  and 
make  a  lease  with  an  exception  of  the  new  house  for  the  use  of  the 
ies'^or  when  I»e  pleases  to  reside  there,  and  at  other  times  for  the  use  of 
tlic  lessee,  the  new  house  is  well  excepted  ;  which  exception  is  not 
avoided  by  the  words  "  at  all  times  to  be  used  by  the  lessee,  when  thie 
ler^sor  doth  not  dwell  th^jre,"  for  that  sentence  doth  not  enure  as  an  eX" 
( rption  out  of  an  exception,  (which  sets  the  matter  at  large,)  but  only 
as  a  declaration  of  the  lessor's  intention  in  making  the  exception.  The 
latter  words,  liowevei",  make  the  lessee  tenant  at  will. 

So  if  a  man  lease  his  houses,  excepting  his  new  house,  during  tlie 
term,  this  exception  is  good  :  but  if  he  except  it  during  life,  it  is  void  ; 
or  if  a  man  having  a  term  of  two  houses  for  certain  years,  grant  his 
houses,  excepting  one  of  them,  for  life,  this  exception  is  void  ;  for  the 
V.  -rds  "  during  life,"  qualify  the  exception,  and  shew  his  intent  that 
the  one,  house  shall  not  be  excepted  during  the  v.hole  term,  and  so  is 
void  (/). 

The  reddrndwn  or  reservation  is  a  clause  in  the  lease,  whereby  the 
lessor  reserves  some  new  thing  to  himself  out  of  that  which  he  granted 
before  -.[q)  and  this  commonly  and  properly  succeeds  the  tenendum,  and 
is  usually  made  by  the  words  ♦'  yielding  and  paying,'*  and  such  like. 
In  every  good  reservation,  these  things  must  always  concur  :  1.  it  must 

fo)  Phr;.   Toiicli   Hi.     l  Kulk.  346.  S.  P.  {h)  Shep.  Toii.cli   77. 

«•;  ir  Mod.  15.     DyerSCa.  i.  Ho'j.  XT.i.  ('/)  Cro.  Eliz.  G. 

(r)  :!  Salt,  156.  '4  Mod.  11.  f  C  If)  12  Mod    If* 
^li    S'cp.  Toin'li  fit). 


Sect.   I  I.J  (inil    /loir  il  nun/  In    made,  11 

be  1)}'  apt  words ;  !i.  it  must  he  oIsdiiU'  ollur  thin.,  is?uln£f  or  crtniiiiL'; 
out  of  the  thiiTj;  granted,  and  not  a  part  of  the  thiiij^  itsell",  nor  of  rwinm 
thini;  issuing  out  of  another  thing  ;  3.  it  must  be  of  t>iu-Ji  a  thin; 
w  hereunto  tlie  gnuitor  may  have  resort  to  destrain  ;  4.  it  must  bt 
made  to  one  of  the  grantors,  and  not  to  a  stranger  to  the  deed. 

A  covenant  is  aclausc  of  agreement  contained  in  the  lease,  whereb> 
cither  \  \\\y  is  bound  to  ilo,  [x  rlonn,  or  give  something  to  theotlnT. 

A  ondition,  or  proviso,  is  a  clause  of  restraint  in  the  lease,  whieli  is 
coMunonly  ex|T;s5ed.by  the  uordb"iiro\  ided,"  or  "  jirovidcd  .dvuiv^," 
or  words  similar  [a). 

Fnroialilir.s  nyuisitr. — It  is  requisite  that  the  respective  parlifs,  the 
lessor  and  lessee,  whose  deed  the  lease  iv,  shnr.M  seal,  ami  now  in 
ahnost  every  case,  sign  it  also  :  an  instrument  not  under  S(U\I,  is  no  de(  d, 
for  a  seal  is  essential  to  a  dec(l(/^).  The  neglect  of  signing,  and 
custom  of  resting  only  on  the  autiiority  of  seals,  renniufd  very  lona 
among  us  ;  for  it  was  held,  in  all  our  books,  that  sealing  alone  was  suf- 
licirut  to  authenficate  a  deed.  The  comnif)n  foiiu  of  aitestin-^ 
i\n;i.]i',  "sealed  and  (klivercd,"  continues  in  great  meas.ire  to  tJiis  day  ; 
uotw  ithstanding  tliat  the  statute ^9  C.  2.  c.  ."iJ.  comu!only  called  "  'I'lie 
"  statute  of  Frauds  and  Perjuries,"  revives  tlie  Saxon  custom,  and  ex- 
pressly directs  tl;c  signing  in  all  grants  of  lauds  and  many  other  specie^- 
of  deeds :  in  which,  therefore,  signing  seems  to  ho  now  as  necessary 
as  scaling,  tliough  it  lias  sometimes  b_cn  held  that  the  one  includes  the 
other. 

Tlie  lease  must  also  be  delivered,  either  1>}'  the  parlies  themselves, 
or  their  certain  attorney  or  attorniis,  which  delivery  is  also  expressed 
in  their  attestation  '*  sealed  and  r/d/Zcrrcfi ,"  for  delivery  makes  it  a 
lease  (r).  Almost  («■/)  any  manifestation,  however,  of  the  party's  in- 
tention to  deliver,  if  accomiKinicd  by  an  act  importing  the  same,  will 
constitute  a  delivery.  If  the  date  be  false  or  impossible,  the  delivery 
ascertains  the  time  uf  it.  If  another  person  seals  the  deed,  yet  if  the 
party  dclivei-s  it  himself,  he  tiicreby  adopts  the  scaling,  and,  by  a 
parily  of  reason,  the  signing  also,  and  makes  them  botli  his  ow  n.  ¥x- 
ery  deed  shall  be  intended  to  be  delivered  on  the  day  it  bears  date, 
unless  the  contrary  be  proved. 

The  last  nciidsite  is  the  attestation  or  execution  of  the  lease  in  tin. 
presence  of  witnesses,  though  this  is  necessary  rather  for  the  preserva- 
tion of  the  evidence,  than  to  constitute  the  essence  of  tlic  deed.  Ever 
sinre  the  reign  of  Henry  VIII.  the  witnesses  have  usually  subscril)rd 
their  attestation,  eitiier  at  the  bottom  or  on  the  back  of  the  deed  :  but 
such  actual  subscription  by  the  witnesses  is  not  required  by  law,  though 
it  is  prudent  for  them  so  to  do  in  order  to  assist  their  memory  when 
living  and  to  supply  their  evidence  when  dead.     A  party  i,  \  \,  'i-  ^^  ,^ 

a:Co.  l-it.  3i.  (6^rT^..■■'■     -If  r,.„      ,-      -I...     ;. 

;..  I  Co.  Lit.  31",.    2  Bl.  Cnm.  ".0*  :  K. 

^r    1  v>r   R.  8!>.    Doiij.  :i:.     tT.  n.rs' 


12  Of  the  llcquisitcs  to  a  Lcascy  [^Chap.  I. 

executed  a  lease  shill  not  be  permitted  to  acknowledge  it,  but  it  must 
be  proved  by  the  subscribing  witness :  and  a  subscribing-  witness  to  any 
instrument  may  be  compelled  to  give  evidence  respecting  it ;  for  the  per- 
son by  siibscri!)ing  his  name  as  a  witness,  undertakes  to  give  evidence  at 
a  proper  time,  and  in  a  proper  manner  ;  and  if  he  deny  the  deed,  other 
witnesses  may  be  called  to  prove  it  (a).  But  proof  of  the  hand-writing 
of  the  contracting  party  may  under  some  circumstances  be  sufficient, 
even  v,  here  there  is  a  subscribing  witness ;  as  if  no  intelligeace  can  be 
obtained  respecting  the  subscribing  witness  after  rgasonabie  inquiry  has 
been  made(/').  Generally  speaking,  however,  every  instrument,  whether 
under  seal  or  not,  the  execution  of  \\liich  is  witnessed,  must  be  proved  in 
the  same  manner,  regularly  by  the  witness  himself,  if  living ;  if  dead,  by 
proving  his  hand-writing  ;  if  residing  abroad,  by  sending  out  a  commis- 
sion to  examine  him,  or  at  least  by  proving  his  hand-\\riting,  which  last 
indeed,  is  a  relaxation  of  the  old  rule  and  admitted  only  of  late  years. 
A  lease  by  deed  may  be  avoided  or  I'endered  of  no  eHect,  if  it  wants 
either  1.  proper  parties  and  a  proper  subject  matter  ;  (c;)  2.  writing,  (or 
printing)  on  paper  or  parchment  duly  stamped  ;  3.  sufficient  and  legal 
words  properly  disposed  ;  4.  reading,  if  desired,  before  the  execution((^) 
for  not  reading  a  deed  to  a  person  in  the  rough  draft,  nor  in  the  engross- 
ment before  execution,  is  a  badge  of  fraud ;  5,  seaUng,  and  by  the  statute 
of  Frauds,  in  most  cases,  signing  also  ;  or  6.  delivery(c).  Without  these 
essentials  it  is  void  ah  initio.  It  may  also  be  avoided  by  matter  ex  post 
facto :  as  1,  By  erasure,  interlineation,  or  other  alteration  in  any  material 
part  (/}.  If  a  deed  be  altered  by  a  stranger,  in  a  point  not  material, 
this  does  not  avoid  the  deed ;  but  otherwise,  if  it  be  altered  by  a  stran- 
ger in  a  point  material,  for  the  ^vitnefses  cannot  prove  it  to  be  the  act  of 
the  party,  where  there  is  any  material  difference :  an  immaterial  altera- 
tion, however,  does  not  qhange  the  deed,  and  consequently  the  witnesses 
may  attest  it  without  danger  of  perjury.  But  if  the  deed  be  altered  by 
the  party  himself,  though  in  a  point  not  material,  yet  it  avoids  it,  [un- 
less a  memorandum  thereof  be  made  at  the  time  of  the  execution  and 
attestation.  2  Bl.  Com.  308.]  for  the  law  takes  ever}--  man's  act  most 
strongly  against  himself.  So,  if  there  be  several  covenants  in  a  deed,  and 
one  of  them  be  altered,  this  destroys  the  whole  deed  ;  for  it  cannot  bp; 
the  same,  unless  every  covenant  of  which  it  consists  be  the  same  also. 

2.  Ky  breaking  off,  or  defacing  the  seal,  unless,  indeed,  it  be  done  by 
accident.  Thus,  on  an  indenture  to  guide  the  uses  of  a  common  recovery 
being  offered  in  evidence,  "with  the  seals  torn  off,  yet,  it  being  proved 
to  have  Ijcen  done  by  a  little  boy,  the  indenture  was  allowed  to  be  read. 

3.  By  delivering  it  up  to  be  cancelled  ;  that  i=,  to  have  lines  drawn  over 
it  in  the  form  of  lattice  work,  or  canrx'lli,  though  the  phrase  is  now  used 
figuratively  for' any  manner  of  obliterating  or  defacing  it  (^).   4.  By  the 

(a)  10  Mod.  333.     1  Str.  1.  S.  C.  Cowp.  845.     Bull.  N.  P.  284. 

i'j)  iJoug.  2!ii.    7  T.  R.  26f..  (c)  2  Bl.  Com.  303.  (d)  2  Atk.  327. 

(0  Cro.  Car.  3D9.    Bull.  N.  P.  267.  {/)  2  Str.  1160:  (?)  2  Bl.  Com.  303. 


■^rct.  II.]  andhoiv  il  mnij  he  made.  \:, 

iHsa^rccmcnt  of  such  uhosf  c  iicurnncc  is  necessary  in  on'er  for  Ihe, 
decil  to  stand:  as  tlic  hiishaml  wIktc  a  fcmc-covert  is  conccnud  ;  rjn 
infant,  or  a  pcrs')n  iip.drr  <linvt<:,  when  those  (lisabilitics  arc  renioNfd  ; 
ami  the  lik<-  (  /).  5.  IJy  the  jii<ly;nu'iit  or  decree  of  a  court  of  jndic  i- 
tiirc.  This  was  anciently  llii;  province  of  the  roiirt  of  Sfar  Clnnilf  r, 
and  now  is  thut  of  the  court  of  ('liancery  ;  and  is  exercised  \\  lien  it 
appears  t!iat  the  {\qv\\  was  ()!)laiucd  liy  frainl,  force,  or  olhci  foul  prac- 
tice, or  is  proved  to  he  an  alisolute  forgery  ;  in  any  of  wliicli  casfs,  the 
deed  may  he  avoided  either  in  part,  or  totally,  according  as  the  cause  of 
avoidance  is  more  or  less  extensive. 

The  lease  need  not  he  proved  in  an  action  of  dcht,  for  the  prrfornnncc 
of  covenants  therein  ;  for  tlic  party  is  cbtopiied  to  say  thai  the  lease 
Mus  not  duly  executed  (/.;). 

Of  a  Lease  by  rvriling  nithout  deed. 

AltliougU  the  court  will  presume  the  lease  to  be  hy  deed,  a  lease  for 
a  term  of  years  may  be  created  by  writing  \\  ithout  deed  (r).  The  sta- 
tide  20  Car.  2.  r.  3.  s.  3.  enacts,  tliat  "  No  leases,  estates,  or  interest 
either  of  freehold  or  term  of  years,  or  any  uncertain  interest  (not  being 
eopyhohl  or  customary  interest)  of,  in,  to,  or  out  of  any  messuages,  &.C.. 
shall  be  assigned,  granted,  or  surrendertd,  unless  by  deed  or  note  in 
ivrithg,  signed  by  the  party  so  assigning,  granting,  or  surrendering  the 
same,  or  their  agents  thereunto  lawfully  authorized  by  writing,  or  by 
act  and  operation  of  law." 

In  the  case  {d)  of  Fn/  and  Fhill/'ps,  one  Jones  granted  a  lease  for  90 
years,  if  three  persons  sliould  so  long  live.  The  executrix  of  the  grantee 
assigned  to  one  Pcninton  by  indorsement  on  the  lease  in  these  words, 
"  I  assign  all  my  title,  S<.c.  to  I\Ir.  Thomas  Prninfon,  for  six  guineas  ," 
which  ru'iting  was  neither  sealed,  delivered  nor  stamped.  Pcninton 
entered,  and  exactly  in  the  same  m  inner  assigned  to  one  try  who 
entered  and  was  possessed  ;  but  in  1750  gave  up  the  possession.  The 
executrix  of  the  grantee  was  then  i\i^\{.\.  Her  executor  hid  never  entered 
or  done  any  act  of  ownership:  but  in  1770,  he  regularly  assigned  to 
Fry :  at  that  time,  however,  Phillips  was  in  possession  under  a  grant 
from  Jonrs,  made  I)y  him  on  Fry  giving  up  tlie  possession.  The  qitos- 
tion  for  the  opinion  of  the  court  was,  "  Whether  any  thing  passed  to 
Fry  by  the  last  assignment  made  to  him  by  the  executor  of  the  execu- 
trix of  the  grantee,  which  executor  himself  never  was  in  posHSsim  ? 
which  question  tha  court  did  not  determine;  l>ecaube,  upon  the  whole 
of  the  case,  Fry  had  a  right.  Lord  Mansfield  told  the  counsel  that  a 
point  had  occurred  to  t!ie  court  which  had  not  been  mentioned  in  the 
argument.  If  the  indorspment  by  the  executrix  carried  a  legal  interest 
in  the  term  to  Pcninton  from  Elizabeth  Frcmh,  and  Pcninton' s  imlorsc- 

'n^  :  Bl.  Pom.  3f»?      '!•'  1  ffi).  B    ''.»     '<■)  1  Str   S^'-   0  Wi».   ?6.    (<1)  5  But.  5«r. 


14  Of  Iht  Kcqiiisiks  lo  a  Lease,  ^<€.        [Chap.  L 

ment  io  Fri/  hud  a  like  CiTcct,  then  Fnj  had  ihe  whole  lea^e  in  him;  and 
by  the  statute  of  Frauds,  20  C.  2.  c.  3.  s.  3.  it  may  be  assigned  by  a  note 
hi  wr'ning;  and  such  a  note  in  writing  need  not  be  either  sealed,  deli- 
vered, or  stamped,  as  a  deed  mast.  His  Lordship  mentioned  a  case  in 
llie  Common  Pleas,  Tritdt!/  icrm,  1755,  between  Farmer  and  Rogers,  in 
which  it  was  re?ohcd,  "  that  by  the  statute  of  Frauds  and  Perjuries  a 
lease  for  any  term  of  years  may  be  created  by  writing  without  deed,  ^r\d. 
th:it  th.c  same  may  be  surrendered  by  deed  or  note  in  writing  :  and  the 
court  held  that  there  was  no  occasion  for  any  stamp  duty  upon  the  note 
or  indorscmcut,  it  not  lieing  by  deed:  [which  however  is  now  rendered 
necessary,  it  should  seem,  by  stat.  2^.  G.  3.  c.  58.]  So,  in  the  present 
case;  the  legal  interest  in  this  term  might  be  assigned  by  a  note  in 
Avriting.  ?Ir.  Justice  Anton  was  of  the  same  opinion.  Elizabeth  French, 
l)y  writing  under  her  hand,  indorsed  on  the  back  of  the  indenture, 
assigned  to  Pcninton.  This  writing  was  neither  scaled,  delivered,  nor 
stamped.  Peninton  entered  and  then  assigned  in  the  same  manner  to 
Frj.  The  executor  of  Elizabeth  French  had  nothing  to  convey. — Lord 
MtinsficUl.  The  court  must  take  tlie  whole  of  what  is  stated  in  the 
case,  and  upon  the  wliole  of  the  case  the  plaintiff  has  a  right. 

Of  a  Lease  by  Parol  Dei)iisc. 

A  lease  may  lilrewise  be  made  by  parol  demise,  or  verbal  contract : 
M  itb  respect  to  Avhich,  by  the  before-mentioned  statute,  20  C.  2.  c.  3. 
commoniy  called  the  statute  of  Frauds  and  Perjuries,  several  things 
must  be  evidenced  by  writing,  of  which,  before  that  statute,  parol  evi- 
dence had  been  sufficient. 

By  that  statute,  all  leases,  estates  of  freehold,  or  terra  of  years  cre- 
ated !>y  parol  and  not  put  into  writing  and  signed  by  the  parties  making 
the  same,  or  their  agents  thereunto  lawfully  authorized  by  writing, 
thail  have  the  eiTect  of  estates  at  will  only ;  except  leases  not  exceeding 
tliree  years  from  the  making,  whereupon  the  rent  reserved  amounts  to 
two  thirds  of  the  improved  value  ;  and  no  such  estate  or  interest  shall 
be  granted  or  surrendered  but  by  deed,  or  note  in  writing. 

The  meaning  of  tne  statute  was,  that  such  an  ag;reement  should  not 
operate  as  a  term  {a). — A  parol  agreement,  therefore,  to  lease  lands  for 
four  years,  creates  only  a  tenancy  at  will :  but  what  was  considered  as 
a  tenancy  at  w  ill  at  the  time  when  the  act  passed,  has  been  since  pro- 
perly construed  to  enure  as  a  tenancy  from  year  to  year. 

So,  a  general  parol  demise  at  an  annual  rent,  where  the  bulk  of  the 
fsmi  is  enclosed,  and  a  small  part  of  it  lies  in  the  open  common  fields, 
is  only  a  lease  from  year  to  year,  and  not  for  so  long  as  tlie  usual  course 
ofhiisbandry  extends  (/>). 

A  lease  for  three  years,  to  commence  infuturo  by  parol,  is  not  war- 
rinted  by  the  statute  of  Frauds  (c). 

'o)8T.  R.  3.     3T.  R.  16.     4  T.  U.  6C0.  (6)  2  Bl.  Rcp.  1171. 

■    12  Mo<I.  610.    2  W.  Raym.  T.'G. 


1.  III.]  Of  register iiii^  Ijiasts. 

liut  a  lease  by  parol  for  a  year  anc!  a  lialf,  to  connncncf  af'er  llu*  cx- 
,untion  of  a  lease  which  wauls  a  year  of  ixpiriii.^',  is  a  «;.)o(l  lease  williiu 
the  statute;  for  it  does  not  exceed  three  years  from  tlie  niakin;^  {ti). 

If  land  be  IciLsed  to  -i.  for  a  year,  and  so  from  year  to  year  as  \o\v*  a- 
both  partif  s  shall  ai^ree,  this  is  a  lease  for  two  years  certain ;  antl  if  th-.: 
lessee  hold  on  after  two  years,  lie  is  nut  a  lessee  at  will,  (as  the  old  opi- 
nion wa>)  but  for  a  year  certain,  and  his  lease  is  not  deterniinil>!t  till 
that  year  l)e  ended  ;  for  hLb  lioUIing  on  is  an  as^rcemcnt  to  the  orifjinal 
contract ;  anil  such  executory  contract  h  not  void  by  the  Flatutc  of 
I'lauds,  for  tiiirc  is  no*terui  for  above  two  years  ever  sal>^'i^(in^  at  thc^ 
same  tin;c ;  and  there  can  be  no  fraud  to  a  purchaser,  for  the  utmo.-l, 
interest  that  cxw  be  to  Ijind  hiiu  can  be  only  for  one  year.  Knt  if  tho 
original  contract  were  only  f  )r  a  year  at  8/.  per  ami.  rent,  without  men- 
tioning any  time  certain,  it  would  be  a  tenancy  at  will  after  the  e^cpira 
lion  of  the  year  ;  unless  there  was  some  evidence,  by  a  rcj^ilar  paj^n*  nl. 
of  rent  annually,  or  half  yearly,  that  the  intent  of  tJic  parlies  wa^lliat 
he  should  be  tenant  for  a  year  {h). 

If  a  landlord  lease  for  seven  years  by  parol,  though  the  lease  be  void 
by  tJie  statute  of  Frauds,  as  to  the  diu-ation  of  the  term,  the  tenant 
holds  under  the  terms  of  the  lease  in  other  respects,  as  to  the  renl,  lliu 
lime  of  the  year  when  the  tenant  is  to  quit,  ^^c.  (r). 

So,  where  the  tenant  holds  over  after  the  expiration  of  his  term  with- 
out having  entered  into  any  new  contract,  he  \\'A<\<  nj^oii  Va-  f-Miii'  ■ 
tcrnjs  (r/). 


Section  III.     Of  rcgistcriiti^  Leases. 

The  rcgistri/  of  deeds  has  been  rendered  necessary  in  particular  parts 
of  the  kingdom,  by  certain  statutes  passed  at  various  periods  of  time,  in 
order  to  prevent  the  frauds  which  were  practised  by  means  of  seer.  1 
transfers  and  prior  mortgages. 

The  statute  2  and  3  Ann.  e.  4,  enacts,  that  a  memorial  of  all  deeds 
and  conveyances  made  and  executed  in  the  West-Riding  of  tltc county 
of  Yorky  after  Scplembcr  20,  ir01<;  whereby  any  honors,  manors, 
lands,  I'i^c.  may  ]jc  any  way  aliccted  in  law  or  equity,  may,  at  tJic  ejec- 
tion of  the  party  or  parties  concerned,  be  registered  in  an  office  to  be 
licpt  at  Wakefield,  m  the  said  Uiding, for  that  purpose;  which  memorial 
must  be  \\rittcn  and  directed  to  the  ixgister  of  the  said  olUcc ,  ami  must 
be  und?r  the  hand  and  seal  of  some  or  one  of  the  grantor?^,  or  grantees, 
hi.  or  their  guardians  or  trustees,  attested  by  two  witnesses,  one  whereof 
to  be  one  of  the  witnesses  to  the  execution  of  such  deed  or  Conveyance  ; 
which  witnes'-  pIk^*.!!,  upon  oath  before,  tlie  said  register  or  his  dopuly. 

in)    t'.„ll.    X. 

(6)  Hull.  N.  1'.  U.        tio,  Lliz.  'l^  .  '■■ 

{<i)  IT.   P..   ;C1'. 


10  Of  ngistering  Leases.  [Chap.  1. 

prove  the  sijjiihig  and  scaling  of  the  said  memorial,  and  the  execution  of 
the  deed  or  conveyance  therein  mentioned  ;  and  that  every  such  memo- 
rial shall  contain  the  date  of  such  deed  or  conveyance,  and  the  names 
and  additions  of  all  the  parties  thereto,  with  the  places  of  their  ahode ; 
and  shall  also  mention  the  honors,  manors,  lands,  S>-c.  contained  in 
■'■ijcli  deed,  tvr.  and  the  names  of  the  parishes,  Src.  wherein  they  are 
situated:  every  deed  or  conveyance  that  sliail,  at  any  time  after  such 
)ncmorial  is  so  registered,  ))e  made  and  executed  of  the  honors,  manors, 
lands,  S^c.  or  any  part  thereof  contained  in  such  memorial,  shall  be 
adjudged  fraudulent  and  void  against  any  subsequent  piircliaser  or 
m(;rtg.igcc  for  valua])lc  consideration;  unless  such  memorial  thereof 
shuii  be  registered  as  the  act  requires,  before  the  registering  of  the  me- 
)noriaI  of  the  deed  or  conveyance  under  which  such  subsequent  pur- 
cliaser  or  mortgagee  shall  claim. 

The  statute  6  Ann.  c.  35.  contains  provisions  of  a  similar  nature 
with  respect  io  the  East-Riding  of  the  same  county,  and  the  town  of 
King.ifcn-upoJi-I/iill,  and  appoints  the  llcgi^tcr-oUicc  to  l>e  kept  in  Be- 
-ccrJcij  in  the  said  Riding. 

Tiie  statute  8  G.  2.  c.  6.  contains  provisions  of  a  similar  nature  vriih 
respect  to  the  North-Riding  of  the  same  county. 

Tiie  statute  T  Jnn.  c.  20.  contains  provisions  of  a  similar  nature,  with 
respect  to  the  county  o[  Middlesex.  The  blaster  of  the  King's  Bench 
to-be  the  Re^ristcr  who  may  appoint  a  deputy,  both  of  them  to  be 
under  the  control  of  the  Lord  Chancellor,  by  whom  rales  may  be  made 
for  the  management  of  the  oiTice,  whicli  is  to  be  tept  in  or  near  the 
Inns  of  Court  or  Chancery.  The  registers  to  endorse  a  probate  of  every 
deed  so  registered,  which  certificate  shall  be  allowed  as  evidence  of  such 
registry  in  ali  courts  of  record  whatsoever.  Upon  certificate  and  proof 
made  to  the  register  that  money  due  on  a  mortgage  entered  in  the  re- 
gistry has  been  satisfied,  the  register  shall  make  an  entry  thereof  in  the 
margin  against  the  inrolment. 

By  statute  25  G.  2.  c.  4  the  deputy  of  the  chief  clerk  of  the  King's 
Bench,  is  appointed  a  register  for  Middlesex,  instead  of  the  chief  clerk. 

By  these  statutes,  deeds,  conveyances,  and  devices  by  wiU  shall  be 
void  against  subsequent  purchasers  and  mortgagees,  unless  registered 
before  the  conveyances  under  which  they  claim  ;  also  no  judgment, 
statute,  or  recognizance,  shall  bind  any  lands  in  tliose  counties,  l)ut 
from  tiie  time  a  memorial  thereof  shall  l)e  entered  at  the  Register-ofHce. 
But  tlie  acts  do  not  extend  to  copyhold  estates,  leases  at  a  rack-rent,  or 
to  any  leases,  not  exceeding  tu  eiity-one  years,  where  the  possession  goes 
\wtli  the  lease  ;  nor  to  any  chamber  in  the  inns  of  court. 

The  intention  of  the  register  act  plainly  is  to  secure  subsequent  pnr- 
rhis.;'rs  and  mortgagees  against  secret  conveyances  and  fraudulent  in- 
n.nibr.uirfs  (n^. 

(n)  3  AV...  6il-2: 


r^vci.  HI.]  Of  rei^isteriiii^  Jaoscs.  17 

"\\  Jr'IC  a  person  had  no  noliceof  a  prior  conveyance,  there  llic  rt^is- 
kring  of  Jjis  suhseijiunt  conveyance  shall  prevail  a-zainst  the  prior  ;  but 
if  he  had  notice  of  a  prior  conveyance,  then  tliat  was  not  a  secret  con- 
veyance hy  which  he  could  he  prejudiced.  The  enacting;  clause,  which 
says  "  tlj.it  every  soch  deed  shall  l>c  voiil  acfainst  any  suhs^'quent  pur- 
chaser or  iuort!<agce,  unless  the  memorial  thereof  l)e  registered,  <<>V." 
gives  them  the  let;al  estate,  hut  do(s  not  say  tiuit  such  suhsequ*  nt  pur- 
ciiaser  is  not  lell  open  to  any  equity  wliicli  a  prior  purchaser  or  iiuuni- 
brancer  may  have  ;  for  he  can  be  in  no  danger  where  he  knows  of  ano- 
ther incumliranee,  because  he  might  then  have  stopped  his  hand  from 
proceetlin<. —  The  operation  of  the  register  act  7  Ann.  r.  20.  and  that 
for  the  iruolment  of  bargains  and  sales  27  //.  8.  and  tlie  conhtruclion 
of  them,  are  the  same  ;  and  it  would  be  a  most  mischievous  thing,  if  a 
l)crson  taking  advantage  of  the  Jegal  form  appointed  l)y  an  act  of  par- 
liament, might  unchr  that  protect  hiniself  against  a  person  who  had  a 
prior  equity,  of  which  he  had  notice  (//). 

The  register  act  is  notice  to  every  body,  and  the  meaning  of  it  wa.s 
to  prevent  parol  proofs  of  notice  (6).  It  is  only  in  cases  of  fraud  that 
the  court  of  Chancery  have  broke  in  upon  the  act,  altiiough  one  in- 
ciiiubrance  was  registered  before  another  :  and  though  clear  notice  is  a 
proper  groiitid  of  relief,  suspicion  of  notice  will  not  suince. 

A  registered  conveyance  therefore  of  premises  in  Middlesex  for  a  va- 
luable consideration,  was  established  against  a  prior  devise  not  regis- 
tered ;  the  evidence  of  notice,  which  ought  to  amount  to  actual  fraud, 
not  being  found  (r.) 

But  notwithstanding  that  it  was  said  that  the  register  act  is  notice  to 
every  body,  registration  in  ^Middlesex  of  an  cqtutabh;  mortgage  was 
held  not  presumptive  notice  ofitscif  toa  subsequent  legal  mortgagee, 
so  as  to  take  from  him  his  legal  advantage  Ql). 

So,  after  an  assignment  of  a  mortgage,  payments  to  the  mortgagee 
without  notice,  nmst  be  allowed  by  the  assignee  ;  the  regi-^lry,  (the 
premises  being  in  IMiddlescx)  not  being  notice  for  this  purpose  (t). 

Registering  an  assignment  is  not  registering  the  lease.  Tliercfore, 
wlicre  the  defendant  claimed  under  a  lease  mailc  in  ir.30,  which  was 
soon  after  mortgaged,  and  in  1731,  sold  out  and  out  to  the  defendant  ; 
the  original  lease  was  not  registered,  but  the  first  mortgage  of  it,  and 
the  defendant's  purchase  were  :  and  it  not  being  a  lease  at  rack-rent,  the 
question  was,  whether  this  was  a  registry  w  ithin  tlu*  meanin-'  of  7  .hin. 
c.  20?  and  the  Chief  Justice  {Holt)  held  it  not  ti>be  sufilcient :  for  the 
act  says  the  deed  under  which  the  party  claims,  witii  the  witnesses' 
names,  shall  be  recristered  ;  and  of  this  a  subsequent  pwrchaser  can  have 
no  notice  by  the  bare  registry  of  the  aisignmcnt,  and  it  is  also  required 
that  the  original  be  produced  to  the  ofllccr  (/). 

(a)  3  ACc.  Ml-a  <6)  sf  AU.  275.  Ambl   435.  5.  c.  (o.)  3  Vei  jun  47t 

C*:;.  AiTiM.  CTir  U)  \  Vm  jun.  SS'.  ^O  2  Str   1064. 


18  Oj  jigisUriiig  Leases.  TCiiap.  i. 

On  a  jnoviso  iu  a  lea^e  of  lands  of  tlie  Dudiy  of  Lancaslof,  according; 
to.stat.  27  H.  8.  c.  11.  that  it  should  be  inroled  M'ith^.he  auditor  , 
liie  certificate  of  the  auditor  on  the  margin  was  held  to  be  sufficient 
cvidcMce  of  the  inrolment  (a). 

If  a  memorial  is  executed  by  any  paHy  to  a  deed,  resident  in  the 
Tuctropolis,  whether  it  be  grantor  or  grantee,  and  it  is  convenient  to 
the  witness  to  attend  at  the  registering  oOice,  the  oath  of  such  execu- 
tion is  adnunistered  verldally,  in  the  following  terms;  "You  swea.- 
that  you  saw  tliid  memorial  signed  and  sealed,  and  the  deed  to  Avhioh 
it  refers  duly  executed  by  the  party  (or  parties)  thereto,  whose  exe- 
ciition  you  have  attested:"  {b)  and  it  is  not  necessary,  in  such  case, 
to  afhx  an  affidavit  stamp,  or  any  other,  to  the  parchment  on  which 
^ucli  memorial  is  v.ritten.  But  if  the  memorial  is  necessarily  executed 
by  all  parties  in  the  country,  and  there  stvorn,  the  affidavit  must  be  en- 
grossed on  the  proper  stamp,  and  may  be  either  written  under,  or  an- 
nexed to,  the  oTiemorial.  It  must  ;)e  on  parchment,  and  its  form  will 
be  found  among  the  precedents  in  the  Appendix. 

ft  being  often  found  more  convenient  to  obtain  the  registry  of  an  in- 
strument by  a  representative  of  a  deceased  party,  under  some  one  of  the 
designations  of  heir,  executor,  administrator,  guardian,  or  trustee,  than 
by  any  of  the  survivors,  who  if  grantors  may  perhaps  hesitatetodo  jus- 
tice, and  as  the  direction  of  the  act  docs  not  convey  a.  very  distinct 
itlea  of  the  manner  in  which  the  registry  by  such  representative  is  to  be 
o.Tcctcd,it  may  be  useful  to  premise,  that  the  instrument  to  be  regis- 
tered, notu  ithstanding  it  is  already  sufficiently  executed  for  general 
legal  purposes,  must,  in  addition,  be  sealed  and  delivered  by  the  person 
re-quiring  the  registry,  as  if  he  was  a  party  in  his  own  right;  (r)  and 
such  person  must  also  sign  and  seal  a  memorial,  which  will  be  varied 
from  the  usual  form  where  it  refers  to  witnesses  [See  Appendix.]  An 
alteration  in  this  case  is  to  be  written  under,  or  indorsed  on  the  instru- 
ment in  the  following  terms ;  "  Sealed  and  delivered  by  C.  D.  one  of 
l!ic  executors"  (or  otherwise)  "of  the  within-named  A.  2?."  (for  the 

purpose  of  registering)  "  in  the  presence  of "  In  respect  to  the 

parties  to  deed  residing  out  of  town,  if  such  deed  appears  properly  exe- 
«Mt?d  and  attested,  the  proof  of  its  execution,  and  that  of  the  memorial 
by  any  one  of  the  purlics  (consonant  to  the  form  of  oath  contained  in 
the  preceding  paragraph)  will  render  any  afiidav it  from  the  country 
uitcIcss  :  nr;Iti;tr  U  it  material  that  the  witness 'would  see  the  same  party 
cj^'xuti;  thb  deed  who  signs  and  seals  tlie  memorial;  for  instance,  if  the 
deed  be  made  from  A.  to  B.  and  the  witness  attests  the  execution  of 
tii'Mlced  by  the  former,  his  sw-ing  the  memorial  executed  by  B.  will 
suffice.  It  will  be  requisite,  however,'  in  such  memorial  to  state  the 
other  attestation,  (or  at  testations,  if  more  than  one)  to  the  deed,  with 


; .  1 .  1 1 1  Of  lltgislertii!:;   / , -- - w ^  1 1» 

lie'  dcscriiU'M. .  ui  .ill  iJio  witnesses,  [1  ni  m  m  ..- ^... .  n.  ui-n  ^  kim.  tiii^ 
HiCrG  Acts,  the  reader  ifi  referred  to  !\Ir.  Ri^^gr^s  r)I)Scrvnlioii5  on  \\w. 
statutes  for  rcsifctering  Deed--.] 

A  Ic-  '-ec  of  l.t.iid  ill  Uic  RcdforJ  1x:m'1  r  uiiiut  oI)ject  to  an  art  ion  |iy 
iwb  JLindlord  f;,  I  ?.iTacIi  of  covenant  in  not  repairing,  that  the  ica-R 
vvas  void  h}  uf  1.5  Car,  2d.  c.  IT.  for  want  of  l)eing  registered^ 

iuTd  6uc!i  act  tu:^icliiig  tljat  "  no  lease,  ^:c.  shouhl  be  of  force,  hut  from 
ihe  thnc  it  should  be  registered,"  nut  avoiding  it  as  between  tiie  parties 
tJieinsclves,  bnt  only  jiostponin;^  its  priority  w  ith  r<"-pect  to  sub'-njinent 
i nr umbrancc!:  rruistcring  their  titles  before  (n). 


[     20     ] 

CHAPTER  II. 

Section  I.     Of  Agreements  for  Leases,  and  the  Remedies 

thereon. 

Section  II.  Of  Stamps  required  to   Leases,  and  Ag-reements 

for  Leases. 


Section  I.     Of  Agreements  for   Leases,  and   the  Remedies 

thereon. 

"WE  liave  already  seen  that  ■v\hcre  an  agreement  for  a  lease  contains 
Avords  of  present  demise,  and  there  are  circumstances  from  which  it 
may  be  collected  that  the  tenant  was  meant  to  have  an  immediate  legal 
interest  m  the  term,  such  an  agreement  will  amount  to  an  actual  lease  ; 
but  \vc  shall  noAv  shew,  on  the  other  hand,  that,  although  words  of  pre- 
sent deraisv  arc  used,  yet  if  it^appears  on  the  whole,  that  no  legal  interest 
was  intended  to  pass,  and  that  the  agreement  was  only  preparatory  to  a 
future  lease  to  be  made,  the  construction  w  ill  be  governed  by  the  inten- 
tion of  the  parties,  and  the  contract  will  be  held  not  to  amount  to  more 
than  merely  an  agreement  for  a  lease,  which  equity  will  enforce. 

Thus  an  instrument,  setting  forth  the  conditions  of  letting  a  farm,  the 
term  to  be  from  year  to  year,  and  the  lands  to  be  entered  upon  at  a 
period  fixed,  ike.  and  that  a  lease  was  to  be  made  upon  these  conditions 
Avith  all  usual  covenants ;  at  the  foot  of  Avhich.  instrument  the  intended 
lessee  wrote,  "  I  agree  to  take  the  premises  at  the  rent  of,  v*v.c.  subject 
to  the  covenants,"  was  held  to  be  an  agreement  for  a  lease,  and  not  a 
present  demise ;  there  being  not  only  a  stipulation  for  a  future  lease, 
])ut  time  being  given  to  prepare  it,  before  the  commencement  of  the 
term,  and  no  present  occupation  as  tenant  contracted  for  (ji). 

A.  agreed  to  let  B.  a  farm  at  a  certain  rent,  "  and  at  and  under 
all  usual  and  customary  covenants,  as  between  landlord  and  tenants 
v.here  the  premises  are  situate."  A  proportionate  abatement  was  to 
be  made  out  of  the  rent  in  respect  of  certain  excepted  premises.  This 
was  considered,  under  the  circumstances,  as  Ijeing  only  an  agreement  for 
a  lease  (Ji). 

An  instrument  on  an  agreement  stamp  reciting  that  J.  in  case  he 
should  be  entitled  to  certain  copyhold  premises  on  the  death  of  B. 
•would  immediately  demise  the  same  to  C.  declarinc;;  "  that  he  did  agree 
to  demise  and  let  the  same,"  w  ith  a  subsequent  c  )venant  to  procure  a 
licence  to  let  from  the  lord,  operates  only  as  an  agreement  for  a  lease, 
and  not  as  an  absolute  demise  (r). 

rnjnEaftK.l?  (fc)3TaoDt.C5.  (c)5T.R.183. 


.•^cct.  l.j  of  Aj;rcniicn!s  Jor  Jj(t:iy,\i.  li 

So,  thougli  wurds  in  an  agreement,  tliiL  "  .-/.  sliall  hold  and  enjoy, 
^-c."  if  not  ucconi|(:iiiied  hy  ir,«trainintj  words,  operate  as  uonls  of 
present  demise,  yet  if  they  l>e  followed  hy  others  Mliich  shew  that  the 
parties  intended  tlut  there  shoidd  lie  a  lease  in  future,  they  cunstitiile 
merely  an  agreement  for  a  Ira^-e ;  for  the  uliolc  nuist  lUpend,  in  this 
and  .similar  castb,ou  the  intention  of  thi;  parties  ((«). 

An  agreement  to  lease  at  a  cirlain  rent,  and  that  the  lessor  should 
not  turn  out  the  tt-nanl  to  lon;^  as  he  paid  tiie  nut,  and  diti  not  sfll, 
&.C.  any  article  ir»jiirious  to  the  lessor's  business,  eilher  purports  to  I  u 
a  lease  for  life, and  would  then  be  void  as  not  heinu;  crcatable  by  parol; 
or  if  it  ojjcrateas  a  tenancy  from  year  to  year,  it  must  n-cessarily  be 
deteniiinaMe  by  cither  ]»arty  jjivin^  the  rei;ular  notice  to  quit  (/>). 

Where  yJ.  by  ai^recment  in  writing];,  but  not  stamped,  articled  w  ith 
Ji.  to  grant  him  a  lease  for  twenty-one  years,  and  B.  entered  and  con- 
linacd  in  [losscssion  eighteen  years,  but  no  lease  m  as  ever  tendered  l>y 
j4.  ordemuided  by  Z>  the  aijrciincnt  was  held  to  be  a  good  defence  in 
an  action  of  ejectment  broup^ht  by  ./.  (' ).  This  case,  however,  seems 
inconsistent  with  the  principles  upon  which  otlier  cases  similarly  cir- 
cumstanced iiavc  been  ruled,  and  has  indeed  been  since  doubted  («'). 
Tlie  rule  certainly  does  not  extend  to  the  case  of  a  purchaser. 

The  trustee  of  a  term,  for  the  benefit  of  creditors,  not  having  notice 
of  an  a^T.^emcnt  for  a  lease  made  previous  to  the  grant  of  tlic  term, 
has  been  permitted  to  maintain  ejectment  against  the  tenant  in  posses- 
sion, under  the  agreement,  on  Hie  ground  that  the  title  of  the  ten..nt 
being  only  a  doubtful  equity,  could  not  Ije  set  up  against  the  legal  title 
of  tiie  trustee  (c). 

An  agreement  to  make  a  lease  is  a  good  lease  in  equity,  and  a  con- 
firmation of  such  lease  by  him  in  remainder  is  a  good  lease.  IlamiUon 
v.  Lad'/  Cardress,  11.  Bronti's  Cos.  in  Pari,  by  Toinlins. 

An  agreement  for  a  lease  from  a  dean  and  chapter,  executed  by 
the  dean  for  himself  and  chapter,  though  signed  by  him  only,  sliall 
hind  the  cliaptcr  notwithstanding.  Deans  and  chapters,  for  fear  of 
incurring  the  penajties  of  the  restraining  statutes,  (of  which  here- 
after) have  been  careful  of  preserving  the  same  description  in  their 
leases  since,  as  tlicy  did  before  those  statutes  ;  and  pos3il)Iy  at  the  time 
of  the  old  leases  there  might  be  barns  or  ancient  buildings,  which,  after 
such  a  length  of  time,  must  have  been  long  since  decayed  and  gone :  the 
court  therefore  w  ill  not  decree  a  specific  performance  of  covin  uits  for 
repairs ;  but  will  leave  the  party  to  their  action  at  law  for  the  n3n-i>er 
formance  :  neither  will  they  decree  thata  tenant  in  such  case  shall  de- 
liver up,  at  the  expiration  of  his  lease,  the  premises  with  such  l)uililing^ 
upon  them,  when  tliere  is  not  the  least  proof  that  they  were  in  being 
at  the  making  of  the  lease  (/). 

If  an  agreement  be  by  ./.  Ji.  and  C.  to  make  a  lease,  and  it  is  exe- 

(n)  2T.  R.  7P.'  i  E»Jt.  1G5.  (c)  Cowp.  437.  (d)  1  Bro.  R  3a7. 

ft;  1  T  R  7  •  (/)  Com  nig.1»t.  Arr^emonf,  '2  0  1^2  AtV  I*. 


22  Of  Agramcnls  for  LiUoCo,  |_(^li;i[t,  IL 

cuted  !)>■  J.  it  shall  be  decreed  that  B.  and  C.  who  \vere  the  sons  o{  J. 
shall  execute  it,  though  the  agieejnent  was  by  parol  ;  for  it  was  out  of 
the  .statute*  ('). 

Witli  respect  \o parol  ascreeraents,  it  is  an  established  rule,  [b)  that  a 
parol  aix,vei:mci]\,  J)iirt  J)cr/of  ))i( il,  is  not  a\  ilhiu  the  provisions  of  tlic  sta- 
tute of  Frauds,  but  will  be  decreed  to  be  executed  by  acourt  of  equity  ; 
for  M'hore  a  part  of  the  agreement  is  perionned  on  one  side,  it  is  but 
connnon  justice  that  it  be  carried  into  execution,  (r)  Pica,  therefore, 
of  the  statute  of  Frauds  to  a  bill  for  discovery  of  a  parol  agreement 
part  performed  will  not  be  allowed.  So  a  parol  agreement  confessed  or 
in  part  executed,  is  binding  (W). 

As  to  what  acts  amount  to  a  part  i)orrormance,  the  general  rale  is, 
(r)  that  tlicacts  must  be  such  as  could  be  done  with  no  other  view  or 
desigji  than  to  j)crform  the  agreement,  and  not  such  as  arc  merely  in- 
troductory or  amiiiary  to  it.  A  tender  of  conveyances,  therefore,  is 
not  part  performance  of  an  agreement ;  it  must  be  something  hi  actual 
execution  of  U\c  contract,  not  merely  towards  the  execution:  thus,  in 
a  letter,  "  I  will  give  1G,500/."  answer,  "  1  will  not  take  less  than 
ir,00O/."ansi\er  returned,  "  I  will  ,u;ive  17,00()/."  this  is  not  an  agree- 
ment executed  in  writing  within  the  statute  of  Frauds  (/). 

Delivery  of  possession,  however,  or  payment  of  money,  is  a  part  per- 
formance of  an  agreement  not  reduced  into  writing :  (5-)  for  delivery 
of  possession  !)y  a  person  having  possession  to  the  person  clainung  under 
the  agreement  is  a  strong  and  marked  circunistance  (//)• 

Thus,  upon  an  agreement  for  the  surrender  of  a  term  where  the 
lessor  accepts  the  key,  he  shall  be  bo  md  to  accept  of  the  surrender  (i). 
— But  though  taking  possession,  or  such  other  act  in  pursuance  of  an 
agreement.  Is  sulhcient  evidence  to  have  the  agreement  decreed,  yet  the 
circumstance  of  vendees  ordering  conveyances  to  be  drawn  in  pursu- 
ance of  a  parol  agreement,  and  going  several  times  to  see  the  premises, 
and  a  letter  from  the  vendor,  mentioning  the  agreement,  but  not  the^ 
price,  will  not  induce  the  court  to  decree  a  performance  ;  nor  will 
sendini  an  appraiser  to  value  the  thing  agreed  for  (k). 

So  in  another  case,  it  is  said  that  where  a  man  on  promise  of  a  lease 
to  bv'  niade  to  him.  lays  out  money  in  improvements,  he  shall  oblige 
the  U'tsir  afterwards  to  execute  a  lease,  because  it  was  executed  on  the 
part  of  the  lessee  (/). 

Therefore,  (m)  where  a  lessor  made  a  verbal  promise  to  his  lessee,  to 
secure  him  in  the  possession  of  the  premises  during  the  lessee's  life,  in 
c-ouscqtience  of  whidi  promise  the  lessee  made  considerable  altera- 
tions and  improvements,  and  after  the  lessor's  death,  a  mnnorandimi 
oi  this  promise  was  found  among  his  papers,  wherein  he  expressed  a 

(n)  1    Vcrn.  210.  (b)  2  Bio.  R.  SGC.  2  Atk.   100.     2  Str.  7R:!.  (c)  I   Ves.  297 

00  ll.i.I.  .411.  rO  Amhl.  S'Jfi.  Bro.  II'  412.  r/J  Lofft.  7C«.  (g)[iMk.i. 

('•:  V.  \eH.  Jim.  .TRI  (-,;:!  Veni.   n3.  1  Atk.  12.  f';  I  EtJ.  C».  Abr.  20. 

'/;  I'rccXJba:  Mi.  (m)  3  Hro.  R.   U'J. 


Ht'ct.  1.)  and  tin    lititinlUs  tficnon.  j  j 

hoi>c  tiiat  till- same  would  be  oMscrvcd,  J^ord  I'ltui luiv  IwUWWxi  ilu- 
incinoranduiit  took  tiic  cusc  out  of  the  f.t-ilulv'  of  I'niuds,  and  d!  •;  i!.  d  ,i 
Joase  to  be  made  for  iiinely-ninf  years,  dj-tcnuinalile  on  his  li; 

HuL  tlie  hari;  crifry  of  a  steward  in  his  loril':?  contract  b  )ok  w  iiii  Im 
tenants  i.-  njt  ;ui  evidence  of  ilseh"tiiat  there  is  an  a-^r:  euji-nt  lor  a  haM- 
between  the  lord  and  one  of  the  ler«arjts,  Imt  nui>t  he  supju^rled  l>y 
other  proof  (n). 

Piainliil',  pur^;i.liit  t<»  a  [i.mil  ,i-ur):ii  ni  j>u  ,i  liuildini^  kaM-  oi  \\  u.i- 
houFc,  had  proceeded  to  pull  down  part  anil  build  i).irt.  Dcfjre  any 
lease  executed,  tlie  owner  of  the  soil  tlied.  I'lie  defendants,  his  repre- 
sentatives, knew  n  tthin^  of  tJie  matter,  and  insisted  on  t!ie  statute  i»f 
Fraud?.  T]ie  I  -ora  Keeper  dismisbcd  the  bill, but  on  apjjcal  lo  the  J^uidi 
in  I'arliament,  his  dismission  was  reversed,  a  bidldin.^;  Jeace  decreed  {■>). 

If  there  lie  a  parol  agreement  for  a  lease  for  twenty.one  yetirs,  and 
lessee  enter  an<i  enjiiy  for  several  (as  for  exam;jle,  six)  years,  he  sii.dl 
not,  npon  a  bill  brought  to  compel  Juju  to  execute  a  counterpart  for  tlie 
rasidue  of  the  term,  plead  the  statute  (' ). 

For  an  agrceni'iit,  thoui;li  not  in  writing,  l)eini^  evecutcd  on  one  pjrt 
and  an  enjoyment  accordiir^Iy,  equity  wiil  not  avoid  it,  as  it  has  ln<'n 
already  carried  into  execution  (J).  « 

But  (r)  where  a  bill  was  by  a  tenant  of  a  farm  for  a  specific  j)erform- 
ance  of  a  parol  agTecn>cnt  fjr  a  new  lease,  staWni:;  improvements  made 
at  a  consideralile  expense  and  continuance  of  possession  after  tiie  ex 
l)iration  of  the  old  lease,  and  payment  of  an  encreascd  rent  under  tlni 
agreement,  the  i)lca  of  the  statute  of  Frauds  was  ordered  to  stand  for 
an  answer,  with  liberty  to  except. 

Hill  for  specific  performance  of  a  parol  aqreemeut  for  a  lease  wit  iiiii 
the  statute  of  Frauds  charging  possession  taken  umlcr  the  agreement 
and  other  acts  of  part  performance  ;  j)lca  of  the  st;tutc  and  ansui>r 
not  denying  the  acts  aliedgcd  as  a  part  performance,  but  slating,  tint 
being  advised  that  he  entered  as  tenant  at  will,  he  gave  notice  to  quit, : 
ple.i  override  I  (  f). 

Though  the  agreement  be  by  parol,  yet  if  it  be  agreed  to  be  rcdvccd 
into  writintf,  and  part  of  the  agreement  is  executed,  but  the  reducing  of 
it  into  Avriting  is  prevented  by  fraud,  it  may  be  good  (^O- 

Therefore,  an  agreement  to  assign  a  term  and  goods,  and  that  if 
'Fhould  be  put  in  writing,  was  decreed  to  be  executed,  it  b:  iug  part  vi 
ithc  agreement,  that  it  should  be  put  in  v.  riting,  and  part  of  the  money 
having  been  paid  (/;). 

So,  if  a  lease  by  .7.  to  /?.  Is  agreed  by  parol,  and  draw  n  ai,d  ingro^Td 
by  the  counsel  of  /?.  and  afterwards  executed  by  y/.  it  i-liall  not  be 
a\  oided  by  B  (/'). 

r.i  *  1  Alk.  499.  ibj  li  Vcrn.  45*   I  Kq.  Cn  Air  3'.  '• )  2  Sir.  733. 

•)  Vrv   C^   '■•"'<  fr  )  •!  Vf     i-jn  ?.7H.  '•'/  t  Vf^  .ion   «' 


24  Of  Agreements  for  Leases,  [Chap.  11. 

Bills  were  to  have  an  execution  of  parol  agreements  touch- 
ing- leases  of  houses  setting  forth  tliat  in  confidence  of  these 
agreements,  the  plaintills  had  expended  great  sums  about  tlic  pre- 
mises;  and  it  was  ailed ged,  that  it  was  agreed,  that  the  agreements 
should  be  reduced  ijito  writing  :  the  defendant  plcavled  the  statute  of 
Frauds.  Lord  Tv.vi^said,  that  the  difhculty  was,  that  the  act  mal<cs 
void  the  estate,  but  does  not  say  that  the  agreement  itself  shall  be  void  ; 
and  therefore,  he  thought,  that  if  that  subsisted  so  as  to  entitle  the 
part}'  to  dauMges  at  law,  it  might  be  decreed  in  equity,  and  directed 
tliat  point  to  be  tried  ;  but  as  to  the  improvements  made,  his  Lordship 
was  clearly  of  opinion  that  for  such  as  were  of  use  and  necessity,  and 
not  merely  for  humour  and  fancy,  tlic  party  was  entitled  to  have  satis- 
faction ((/)• 

Lease  was  not  decreed  upon  expenditure  in  repairs  and  improve- 
ments under  an  allcdged  agreement  proved  by  one  witness,  the  answer 
coiit-uninj  a  positive  denial  of  the  agreement  j  which  denial  was  also 
confirmed  by  circumstances.  No  relief  upon  general  equity  from  ex- 
penditure under  the  oljservation  of  the  landlord  by  a  tenant,  but  not 
under  any  specific  engagement  or  encouragement  (/;). 

Wherg  there  is  an  agreement  by  parol,  and  part  of  it  executed, equity 
u  ill  decree  specific  execution  of  the  whole  ;  {c)  but  "»  here  there  is  an 
agreement  by  writing  exjpcutcd,  evidence  cannot  supply  any  defsct  in 
that  agreement,  which  was  intended  to  be  part  of  that  agreement,  but 
was  not  inserted  in  it :  [unless,  as  is  conceived,  in  case  of  fraud.] 

Yet,  if  there  is  an  agreement  in  writing  for  taking  a  house  at  32/. 
the  owner  to  put  it  in  repair,  and  afterwards  a  parol  agreement  for  40/, 
the  owner  having  rebuilt  with  the  tenant's  consent,  and  the  lessee 
brings  a  bill  for  specific  performance  of  the  written  agreement,  parol 
evidence  may  be  given  of  the  new  agreement  to  rebut  the  equity 
prayed  (jl). 

So  {e)  if  a  bill  is  brouc^ht  to  carry  into  execution  an  agreement  for  the 
ie-i!?8  of  a  house,  tlie  defendant,  the  lessor,  shall  be  admitted  to  parol 
proof  that  the  plaintiff,  who  wrote  the  agreement,  omitted  to  make  the 
rent  (which  was  reduced  to  9/.  instead  of  14/.  the  former  rent,)  pay- 
able, clear  of  all  taxes. 

Scaling  is  not  necessary  i&i  order  to  bring  an  rgrocmcnt  out  of  the 
statute  of  Frauds  (/). 

A /c'//?r  takes  a  parol  agreement  outof  thestatv.tc:  bntM'herever  ^ 
letter  is  relied  on  as  evidence  of  an  agreojiicnt,  it  n.ust  be  stamped  be- 
fore it  can  be  read ;  it  must  also  furnic-h  the  terms  oi  the  agreement,  or'^ 
must  at  least  refer  to  some  m  ritten  agreement  in  which  the  terms  are 
H\  forth  {(;.) 

'n    1  F.'i  Cx  ,V  '   '  l2Ves.  jiin. 'IS.         •»  Bunb.  e-l.  9  Mod.  fi.        (d)  2  Vcr.  jwn.  22B. 

.,  3Ai!;.:i<^.  .    ,  Free.  Th  17  /f  •  '2Mrn.  U.  r)2.    I  Rtr.  'CR.     1  Atk.  \i.' 


•Sccl.  I.j  <iii<f  llii   Hmudus  tht/cou.  '2j 

There  have  beni  cnpcft  where  a  letter  written  to  a  niaji's  own  a-ent, 
ami  settini;  forth  the  terniP  of  an  ai;reenM-nt  a<  conchjiUd  l»y  him,  ha^ 
heon  deemed  t>>  he  a  si-nin^,'  ^^ithi^  the  statute,  and  aurecaMe  to  tlie 
provision  of  it  {n). 

Therefore,  {!>)  where  there  wns  a  ronij»Uteaj;rernient  in  wriMn.:..  nid 
a  person  who  is  a  parly,  and  kn')\vs  the  contents, su!>gcril)e.s  it  af  a  wit- 
ness only,  he  is  hound  by  it,  for  it  is  a  sii^ninq  within  the  statute  of 
Fraud.s  which  was  passed  in  order  to  prevent  any  thing  depending; 
eitiieron  the  mistake  or  the  perjury  of  witnesses. 

If  there  hn  an  agreonicnl  for  a  Icax  in  tlic  county  of  .V.  where  the 
lessor  usually  repairs,  at;50/.  per  anu.  without  saying  who  shall  repair, 
if  it  appear  that  the  land  is  of  greater  value,  it  shall  be  decreed,  thai 
the  Iei=.see  shall  take  a  learc  and  do  the  repairs,  and  pay  :W/.  prr  tmii. 
yiithoui  deduction,  except  for  taxes  by  parliament  (r). 
Articles  of  aj^rement  may  I)e  rectified  by  tlic  minutes  ((/). 
But  though  a  formal  mistake  in  a  deed  may  be  rectified  by  articles 
'jf  which  it  piu'ports  to  bean  execution,  e.vsential  additions  cannot  be 
made  to  a  conveyance  from  articles  of  which  it  docs  not  pm-port  to  be 
an  execution  :  nor  can  the  transaction  be  rescinded  by  the  court  (0- 

The  court  will  not  relieve  against  a  contract  in  Mriling,  unless  there 
is  express  proof  of  the  mistake  of  the  intention  of  the  parties  (  f). 

Eiicct  of  an  indefinite  representation  by  a  vendor, as  tliat  a  leasehold 
estate  was  nearly  equal  to  freehold,  being  rcnewa!)lc  upon  a  single  fine, 
may,  connected  with  certain  circumstances,  be  fraudulent,  anil  form  a 
j^roimd  for  rescinding  the  contract  (.^). 

It  has  been  held  that  if  a  bond  is  given  with  a  penalty,  a  specific 
performance  shall  not  I)e  decreed:  for  the  party  lias  relied  upon  the 
penalty  (A)- 

Hut  this  may  well  be  doubted  as  a  general  proposition  ;  (/)  for  it  i> 
.  clear  that  a  bill  lies  for  a  fj)ecific  performance  though  a  remedy  be  at 
law  ;  for  the  remedy  by  specific  performance  is  superior  in  many  cases 
to  that  of  damagcfj :  atul  a  jjenalty  has  never  been  held  to  release  parties 
from  their  agreement,  for  though  incurred  they  must  perform  it  not- 
withstanding (A). 

Thus  where  a  priviso  was  in  articles  for  the  purchase  of  an  estate 
that  if  either  party  should  break  the  agreement  lie  should  pay  iOO/.  to 
the  other,  and  the  defendant  on  beinj;  olfercd  two  years'  purchase  more 
accepted  it  notwithstanditig  that  agreement  j  Lord  llardrvickc  decreed 
a  specific  performance  (/). 

The  constant  doctrine  of  the  court  is,  that  it  is  in  their  discretioit 
whether  they  w  ill  decree  a  specific  performance,  or  leave  the  plaintiil 
to  his  remedy  at  law  (jii). 

(o)3Atk.  501.  (fc}  IIn.l.  (c)2  VtrH.  931  t^)  I  '•'  VCi   inn.  181 

(/)  3  Yes.  jiin.  317.  (p)  ; '.  \  ( i  'y<n.  144.  '/  *  'i  '  ;  V.i.  j..b.  541 

■y  2  .Vtk.  n7I  7*  Ibi'i  u<.  r.'  ■     '^ 


26  Of  Agreements  for  Leases,  [Chap.  11. 

Specific  performance  of  an  afi;recmcnt  to  build  may  be  decreed  if  suf- 
ficiently certain :  but  a  general  covenant  to  lay  out  a  certain  sum  in  a 
building-  of  a  certain  value  cannot  be  so  executed  (rt). 

>-/.  agrees  for  the  lease  of  certain  lands  for  three  Jives;  the  lease  is 
prc])arcd  accord iug  to  the  agreement,  except  the  insertion  of  a  clause  to 
restrain  the  tenant  from  alienation  w  ithout  the  consent  of  the  landlord ; 
tiiis  clause  being  no  part  of  the  agreement,  the  landlord  is  bound  to  ex- 
ccuic  a  lease  without  it  {0). 

On  a  covenant  to  build,  the  lessors  are  entitled  to  come  into  a  court 
of  equity  for  a  specific  performance,  but  not  on  a  covenant  to  repair  (r). 
Specific  performance  may  be  decreed  against  one  become  a  lunatic 
since  the  agreement,  if  the  legal  estate  is  in  trustees  (d). 

In  bills  for  specific  performance,  the  court  never  gives  relief  where 
the  act  is  impossible  to  be  done,  but  leaves  the  party  to  his  remedy  at 
law  (r). 

If  an  agreement  be  otherwise  than  certain,  fair,  and  just  in  all  its 
jjartr,  the  court  will  not  decree  a  specific  performance  {/). 

Sj)eciric  performance  will  not  be  decreed  of  an  agreement  to  renew  a 
lease  in  consideration  of  money  previously  laid  out  by  the  tenant ;  such 
promise  is  nndnm  pactum  ;  nor  \vill  the  case  be  varied  by  money  having 
I >een  expended  by  him  after  such  promise. — But  if  previous  to  sucli 
promise  the  tenant  had  signilicd  his  intention  to  lay  out  money,  and  o« 
I'aat  consideration  the  promise  had  been  made,  a  specific  performance 
^\  Oil  Id  be  decreed  (/,>). 

Specific  performance  of  articles  to  grant  a  lease  to' the  plaintiff  decreed, 
though  he  liad  contracted  to  under-let,  contrary  to  those  articles  {h). 

But  the  court  will  not  decree  a  specific  performance  of  an  agreement 
to  grant  a  lease,  if  under  a  clause  for  re-entry,  the  lease,  Avhen  granted, 
Mould  i>e  at  an  end  by  the  tenant's  acts ;  except  on  the  ground  of  there 
iiaving  been  a  waiver  of  the  forfeiture,  and  upon  an  undertaking  to  give 
possession  when  required  I)y  the  court,  and  to  pay  the  rent  due  (?"). 

B.  treats  witli  A.  for  a  piece  of  land,  intending  to  build  a  mill,  to 
which  the  consent  of  a  corporation  is  necessary  ;  but  A.  refuses  to  treat 
oM  condition  ;  B.  fails  in  obtaining  consent:  this  failure  in  his  specula- 
tion is  no  <lefencc  against  a  bill  for  specific  performance  [k). 

A  plea  ti)  a  l)ill  for  a  specific  performance  of  an  agreement  for  a  lease 
to  tlic  plainti fi", and  for  an  injunction  against  an  ejectment,  thr.-  the  de- 
fendant had  since  the  filing  of  the  bill,  taken  the  benefit  of  an  insolvent 
r.cl.  Mas  over-ruled  (/).  .      • 

So  the  bankruptcy  of  a  person  who  has  agreed  to  purchase  does  not 
discharge  the  contract.     It  muf-t  be  a  very  strong  case,  houevcr,  that 

(n^n  Ves.jiin.  184.  (fe)  t  Bro.  Cas.  inl'ar).  3;!.l  (c)3Atk.515.    3  B-o.  R  .  Kfi 

(rf,  1  \  li  ju/i.  t!2.  (_c)  1  Atk.  573.  (/)  3  Atk.  336. 

U-):iir  Ci.  C.  140.     1  Eq.Ca.  Abr.18.  (A)  3  Ves.  juii.  i9. 

»ii  I  Xvi-n  ffeam.  68.  ^Jc)  I  Bro-  5B7.  n)  ir,  Ve&.  jun  lO.n' 


Sect.  I. j  and  Ihe  RcmcdiiS  lilt rron.  21 

will  iiiilucc  tlie  court  to  carry  into  execution  an  a rnVmcnt  brlwuu 
lantllorcl  and  tenant,  the  estate  not  hcinj;  executed  at  law,  wh^e  tin- 
person,  who  is  to  hecotuc  the  tenant,  h:is  become  a  !)aiikrni»t  (a). 

So,  the  court  would  not  execute  an  agreement  to  grant  a  lease  to  a 
man  wlio  had  conrnitted  felony  (/<)• 

An  a!:;re(nient  may  he  decreed  to  he  <lelivereil  up  on  the  t^rotmd  oT 
surprise  ;  neitlier  party  tmderstandini^  the  effect  of  it  ;  a>'  where  there 
was  an  a;^rce»uent  for  a  lease,  with  a  covenant  for  p:»rj)etiial  renewal,  at 
a  fixcni  rent  of  premises  bold  under  a  church  lease,  renewa!)le  upon 
fines,  continually  increasing.  A  single  lease  for  21  years  was  refused :  )io 
terms  of  ai;recmcnt  for  sudi  an  interest  appi'arin'^ ;  and  under  the 
circumstances  permission  to  try  Ihe  eilect  of  it  at  law  was  alsft 
denied  {()■ 

Hill  lor  specific  perfonnance  of  an  ajvreement  to  grant  a  lease  to  tlw 
plaintiif  would,  on  evidence  of  his  fraud,  misrepreserjtation,  and  insol- 
vency, have  been  di«niifseit  with  co.sts,  if  not  compromised  (^/). 

A  lessee's  bill  lor  tiic  spvcific  performance  of  an  ai^retiuient  was 
dismissed,  his  interest  bciti:^  dcscrilied  as  50  years,  the  residue  of  a 
term  free  from  incumbrance? ;  but  beiny,  in  fact,  a  few  j^cars  only  of  an 
old  term,  and  a  revcrsiqnary  term  from  another  lessor,  and  old  incinu 
brances  not  shewn  ('•). 

y^.  bcin;^  in  insolvent  circumstances  siiiTcrs  another  j)crson  to  become 
the  apparent  owner  of  the  farm  (though  u?ider  a  secret  tru<;t  for  him,) 
J.  shall  not  have  against  the  landlord  a  specific  execution  of  an  ai,^rec- 
mtnt  made  by  him  with  the  trustee,  the  lanrllord  supt)osin^-  the  trustee 
to  have  been  the  riuihluil  own:  rand  confiiiiny-  in  his  solvency.  1  Sche. 
Lef.  123. 

So,  specific  performance  was  not  decreed  where  there  was  conceal- 
ment on  tlic  part  of  the  vendor  (/). 

Even  where  one  party  to  an  agreement  trifles  or  shews  backwardnc.-s 
in  pcrfornung  his  part  of  it,  (ff)  equity  will  not  decree  a  specific  per- 
formance in  liis  favour  ;  especially  if  the  circumstances  and  situation  of 
the  other  party  arc  materially  altered  in  the  n^ean  time. 

Hut  the  refusal  of  a  tenant  to  execute  a  lease  when  tendered,  dcclar- 
iiij;  himself  satisfied  with'ihe  af^reenient,  cannot  be  considered  as  repu- 
diating the  agreement,  and  is  not  a  suiViciint  ground  for  rfTu  ir. .  a 
specific  performance  (/:). 

Rimrdics  at  Lcm. — If  either  of  the  parties  to  an  ac^rcement  for  a 
lease  refuse  to  perform  the  stipulations  ^liich  it  containr,  besides  tht^ 
relief  whicli  a  bill  in  equity  fi^r  a  specific  performance  may  afiord  him,        J^ 
the  party  injured  lias  one  of  two  remedies  at  common  law  ;  nameiy,      ^H 
an  action  of  debt,  or  covenant  if  the  ap^rcement  be  by  deed,  or  an  actinn 

(a)  :i  Vt- jun.  aiS.  (6)  I'ulil.  ICiV  '■-'   r.  Vo  jun.  73  .,.,., 

(«)   n  Ves  jun.  3.i7.  (fWHTO    iiO  .    '  Itm.  Cn*.  io  Vnr-    ■ 


2'6  Of  Agreements  for  Leases,  [Chap.  II. 

of  del>t,  or  special  assumpsit,  if  it  be  either  by  writing  ^^ithout  deed,  or 
by  parol,  provided  tiie  contract  be  to  l)e  pertormed  within  a  year  from 
the  making  thereof  ('0. 

Covenant. — A  covenant  is  the  agreement  or  consent  of  two  or  morf 
by  deed  in  writing,  sfealed  and  delivered,  whereliy  either  or  one  of  the 
parties  t'.oth  promise  to  the  other,  that  gomethhig  is  done  already,  or 
shal'  be  done  afterwards.  He  that  makes  the  covenant  is  called  the 
covenants',  nnil  he  to  whom  it  is  made,  the  covenantee  (A). 

An  action  o.'  covenant  lies  Avhen  a  man  covenants  with  another  by 
deed  to  do  something  and  does  it  not ;  and  it  lies  upon  a  covenant  in 
any  deed,  whether  indented  or  poll.  But  covenant  does  not  lie  upon 
an  agreement  without  deed ;  i)ut  an  action  upon  the  case,  except  iH 
London,  where  covenant  lies  without  deed,  by  custom  (r). 

In  covenant  all  is  recoveralile  in  damages,  and  those  w  ill  be  what  thic 
party  can  prove  that  he  has  actually  sustained  ;  {d)  therefore  in  cove- 
nant it  is  suilicient  to  assign  the  breach  in  the  words  of  the  covenant. 

Assumpsit. — If  the  agreement  be  by  writing  without  deed  or  !)y  pa- 
rol, damages  for  the  breach  of  it  may  be  recovered  in  an  action  on  the 
caf^c  u])on  a  special  assumpsit. 

By  the  statute  of  Frauds,  (  )  no  action  shall  be  brought  to  charge, 
^v.  ujwn  any  contract,  or  sale  of  lands  or  tenements,  or  any  interest  in 
or  concerning  them,  or  upon  any  agreement  that  is  not  to  be  performed 
within  the  space  of  one  year  from  the  making  thereof,  unless  the  agree- 
ment, or  some  memorandum  or  note  thereof,  be  in  writing,  and  signed 
by  the  party  to  be  charged  therewith,  or  by  some  other  person  by  him 
thereunto  lawuilly  authorized. 

One  contracts  with  the  owner  of  a  close  for  the  purchase  of  a  grow- 
ing crop  of  grass  there,  for  the  purpose  of  being  mown  and  made  into 
hay  by  the  vendee  ;  this  is  a,  contract  of  sale  of  an  interest  in  or  con- 
cerning land,  within  the  dth  section  of  the  statute  of  Frauds,  29th  of 
Car.2.c.S.(f). 

If  a  party  has  entered  into  a  parol  agreement  for  a  lease,  and  a  draft 
of  it  is  prepared,  {p)  though  the  agreement  is  void  under  the  statute  of 
Frauds,  yet  an  indorsement  by  the  party,  referring  to  the  draft  admit 
ting  the  agreement  is  sufllcient  w  ithin  the  stntute. 

An  action  may  be  brought  in  consideration  that  the  plaintiff  will 
make  a  lease  according  to  a  former  agreement ;  (A)  for  the  agreement  is 
not  executed  till  the  lease  is  made. 

So  if  an  agreement  be  to  assign  a  term  of  years,  as  well  as  where  it 
ir,  for  an  interest  created  dc  novo  (i). 

But  in  an  action  upon  an  agreement  to  deliver  possession  for  certain 
onsidcrations  subject  to  a  forfeiture  on  failure  by  either  party,  the 

(a)  2«X;.  2.  r   3.  (6)  f  licp.  Toiioh.  ICO.  (r)  Com.  Di»  lit.  Covenant,  (A.  1.) 

<<f)  Bull.  >'.  r.  ISl.  (e)  2!t  C.  2.  c.  ;j.  t/)  6  KaBt,  G5&.         Cff)  5  Qopin    190. 

r/.i  1  Uoll.  IJ.  1.  15.  ;i)l  Vent.  301. 


Sect.  I.]  iijid  Ihi    Jiiincdiis  thinoit.  29 

person  who  was  to  deliver  po.-^ses.-ion  cannot  sue  for  t!ie  forfciliirc, 
without  tlieuiny  in  his  dcciaration  a  posseesory  tith'  in  hiini>rir  ('»). 

Action  for  nmnry  had  ami  receivctl  on  l!ic  comm.m  counts  ('y).  De- 
fendant was  possessed  of  a  lease  for  years,  \fhich  he  sold  to  plaint  iflT 
forf-ixteeii  guineas,  an<l  at  the  lime  of  the  sale  observed  that  it  was  a 
good  lease  for  seven  years ;  it  turned  out  afterwards  that  the  lessor  was 
tenant  for  life  only  and  had  no  ri^ht  to  make  a  lease  for  a  h.n-jer  term 
Uian  his  own  life  ;  in  consequence  of  w  hicli  the  plaintilf  was  turned  out 
of  possession  in  two  years  after  the  as->ij;nincnt  of  the  lease  had  taken 
place,  the  lessor  having  died  previously  to  the  bargain  between  tlic 
plaintiU'and  tlie  defendant.  'J'he  plaintiif  lirought  this  action,  there- 
fore, to  recover  the  money  paid  for  the  lease,  as  paid  on  a  consiilerati  »n 
which  had  failed.  On Lri/ccstcr  oltjecUns  to  plaint  ilF  recovering  on  this 
declaration,  which  contained  only  the  connnnn counts,  Lnumur  J.  re- 
ferred to  the  case  of  Crips  v  Reddc^OT.  II.  GuG,  tried  before  him  at 
Oxford,  in  wliich  a  lease  had  been  sold  by  one  as  administrator,  w  hose 
IrttiTs  of  ndniiiiistratio;i  were  afterwards  repealed,  and  tlurc  he  per- 
mitted tlie  plaintiii'to  recover  on  a  similar  declaration,  and  the  court  of 
King's  Bencli  confirmed  his  opinion.     Verdict  for  tlie  plaint i If. 

Kut  a  contractor  for  the  purchase  of  an  estate  to  nhi(h  the  title 
proves  (\vitliout collusion)  defective,  is  not  entitled  to  any  satisfaction 
for  thelossof  his  bari^ain  (r)  :  for  such  contracts  are  merely  on  con- 
dition frequently  expressed,  but  always  implied  that  the  vendor  has  a^ 
good  title;  if  he  has  not,  the  return  of  the  deposit,  with  interest  and 
costs,  is  all  that  can  be  expected,  the  purchaser  cannot  be  entitled  to 
any  damages  for  the  fiincicd  goodness  of  the  bargain  m  hich  he  sup- 
poses he  has  lost. 

An  agrecnient,  thou.t;,h  not  under  seal,  may  be  declared  on  specially, 
in  which  case  it  may  be  said  to  bind  the  parties  by  its  own  foixe  :  or 
the  plaintiilmay,  in  some  instances,  declare  generally,  and  give  the 
written  contract  in  evidence  {d). 

A\  here  money  has  been  paid  under  an  agreement,  which  hns  not 
been  i)erformed,  it  may  be  reco\  ered  in  an  action  for  money  had  and 
rccrivcd  :  antl  though  the  agreement  be  in  writing,  the  party  need  not 
declare  specially  (r). 

Thiirf(/)  //.  having  sold  certain  leasehold  premises  to  Z?.  assigned 
them  by  indenture  containing  a  proviso  that  B.  should  not  assigt)  over 
until  the  whole  of  the  purchase  money  should  have  been  paid,  and  iJ. 
and  C.  covenanted  for  themselves,  their  executors,  admirustrators,  and 
assigns,  for  the  payment  of  the  money.  The  premia*s  having  been 
taken  in  execution  for  a  debt  of  /J.  who  had  not  paid  the  porch  isc- 
money,  were  sold  by  the  sheriil  to  D.  who  paiil  <.loun  the  deposit,  and 

!a)  Dnuf.  (530.  ;i'  MMtUcws  v  Uollinpi  Cor.  Liwrence,  .1  at  Shr«nr«biir\-. Qt   <um 

Cir   M.  b.  S.  ,r)  2HJ   1<    10-1.  -    ■;  T   K  ;,1S      ' 


30  Of  Jgrccmtnts  for  Leases^  &\\  [Oiap.  II. 

agreed  to  complete  the  purchase  on  having  a  good  title  :  held,  tlial  the 
non-payment  ot  the  purchase-money  l>y  B.  was  a  siiflicient  ol)jection  to 
the  title,  and  thalVJ).  might  recover  back  his  deposit  in  an  action  for 
money  had  an<l  received. 

J.  ((/)  agreed  ^^  itli  B.  to  let  him  land  rent-free,  on  condition  that  J. 
should  have  a  moiety  of  the  crops ;  while  the  cro|)  ^^■as  on  the  ground 
it  M  as  appraised  for  both  parties ;  A.  declared  in  indebitatus  msumpsit  for 
nioictyof  the  crop  sold  to  B.  without  stating  the  special  agreement  ; 
and  it  w  as  held  that  he  might  weJI  do  so,  as  the  special  agreement  was 
executed  by  the  appraisement,  and  the  action  arose  out  of  something 
collateral  to  it.  Scmb.  such  an  agreement  need  not  be  in  writing,  un- 
der the  statute  of  Frauds. 

A.  (J))  agreed  in  consideration  of  JO/,  to  let  a  house  to  7?.  which  ^. 
was  to  repair  and  execute  a  lease  of  w  itliin  ten  days;  but  i?.  was  to 
have  immediate  possession,  and  in  consideration  of  the  aforesaid,  was 
to  execute  a  counterpart  and  pay  the  rent.  B.  took  possession  and  paid 
the  10/.  immediately  ;  but  A.  neglected  to  execute  the  lease  and  make 
the  repairs  beyond  the  period  of  the  10  dajT^s,  notwithstanding  v/hich  B, 
siiil  continued  in  possession  ;  held  that  B.  could  not  by  quitting  the 
house  for  the  default  of  A.  rescind  the  contract  and  recover  back  the 
K)/.,  in  an  action  for  money  had  and  received  ;  but  could  only  declare 
for  a  brcacii  of  tlie  special  contract. 

-/.  ((•)  agreed  to  under-let  his  house  to  B.  the  latter  paying  for  the 
furniture  at  an  appraisement ;  A.  at  the  time  that  he  quitted  the  house, 
was  in  arrear  for  rent  to  his  landlord  :  held  therefore  that  B.  was  excu- 
sed from  the  performance  of  the  agreement,  for  the  furniture  would  be 
Jial)le  to  be  distrained  for  the  rent  due  by  A. 

In  an  action  {d)  of  assumpsit  for  non-performance  of  a  contract  for 
the  sale  of  a  house  with  counts  to  recover  back  the  deposit,  the  plaintiii' 
having  in  his  first  count  alledged  that  the  defendant  Avho  was  to  make 
a  good  title,  had  delivered  an  abstract  which  was  "  insufiicicnt,  defec- 
tive, and  objectionable,"  the  court  obliged  the  plaintiif  to  give  a  parti- 
cular of  all  objections  to  the  abstract  arising  upon  matters  of  fact ;  for 
the  party  ought  to  specify  every  matter  of  fact  which  he  meant  to  rely 
upon  at  the  trial. 

A  case  (c)  was  sent  to  a  jury  by  way  of  inquiry  of  damages  by  the 
court  of  Chancery  ;  where  it  appeared  that  the  parties  mIio  applied  to 
the  court  for  a  specific  performance  of  an  agreement,  had  by  their 
committee  and  surveyor,  viewed  without  complaint,  the  progress  of 
the  party  in  repairing  premises  which  they  at  last  insisted  on  being 
rebuilt. 

A  purchaser  discovering  an  incumbrance,  may  retain  so  much  for  it 
as  remains  in  his  hands  (/). 

(a)  1  Ho5.  U  Pul.  3G7.  (6)  5  Ea~t,  1S7  (c)  3  Bos  fj  Pul.  172. 

['I)  \h-A.  216.  (<■)  3  Alk.  517  (/)  1  Ves  81 


Scc(.  [I.]  ,  Of  tilt  Slumps  i(t/iin/(i,  (SV.  ;U 

Skctio.n   n.    Of  lilt  Slamjis  rujiilrnl  to  ftcuscs  and  A^rcv- 

mulls,  (SV. 

A  r.f.Asr  niiist  he  stamped  as  a  lease  by  deed,  th(>ii^;1i  it  he  not  liy 
deed  ;  for  lhou:![li  not  by  deed,  it  falls  williiii  the  words  of  the  act  Ihul 
requires  :i  stamp  to  leases-,  (iiimieraled  amonj;  other  spcci:dlie.s.  Tiif 
statute  i^.i  G.  3.  c.  58.  uliich  imposes  a  stamj)  duty  on  "  indcnliiro, 
IcaseF,  and  otlier  deeds,"  applies  to  every  iiistrumeiit  that  operates  as  a 
lease,  whether  it  be  by  deed  or  not;  for  tlie  imposition  of  a  du!y  is  u 
mere  matter  of  positive  institution ;  and  as  a  lease,  by  w  hatcver  means 
constituted,  falls  within  the  words,  there  is  nothinu;  in  the  nature  of 
the  thing  to  take  it  out  of  them  (rt). 

A  deed  is  good  though  executed  before  it  Ik;  stamped,  provid  d  that 
uhcn  it  is  oJFercd  in  evidence  it  he  stamped,  and  w  ilh  the  proper  stamp 
appropriated  to  the  particular  instnimcnl  (/y).  The  author  rememberF, 
liowevcr.  Lord  Eldon,  when  Chief  Justice  of  the  Common  Picas.,  to 
have  spoken  of  an  objection  having  been  taken  to  an  agreement  being 
received  in  evidence,  not  ])cing  stamped,  whereupon  it  was  stamped 
during  the  trial,  and  then  ofTcretl  in  evidence  ;  but  it  was  igain  object-' 
ed  to,  as  not  being  stamped  at  the  time  the  cause  of  action  arose. 

Whether  or  not  the  instrument  were  valid,  by  the  revenue  being 
satisfied  in  point  of  amount  of  duty,  tliough  the  particular  stamp  or 
stamps  were  not  used,  w as  a  point  on  which  the  court  had,  at  dillercnt 
times,  held  contradictory  opinions.  Tiic  most  recent  deti  rminations, 
however,  went  to  invalidate  any  instrument  that  had  not  been  stamped 
■\\  ilh  the  peculiar  stamp  appropriated  to  it. 

Thus  it  was  liolden,  that  articles  of  agreement  under  seal  could  not 
be  given  in  evidence  unless  stamped  with  a  deed  stamp,  although  the 
agreement  stamp  was  of  the  same  value  but  dilicrcntly  formed:  Lord 
Kniijon  observing,  that  it  was  absolutely  necessary  that  the  tlisliiiction  of 
the  several  stamps  should  be  preserved  in  courts  of  justice,  as  long  a- 
that  distinction  is  kept  up  by  tlie  legislature  ;  and  that  it  had  often 
proved  the  means  of  detecting  forgeries,  by  compariii.;  the  stamp  on 
forged  instruments  with  those  in  use  at  the  time  (r). 

On  the  same  principle  it  was  held  (</)  that  a  promissory  note,  ^v  ritteu 
upon  a  stamp  of  greater  value  than  the  proj)er  stamp  requlreil,  could  not 
be  given  in  evidence,  though  the  stamp  were  ajiplicable  to  the  same 
kind  of  instrument.  In  this  case  also  Lord  Kavjon  said,  However  mu(  h 
it  were  to  be  wished  that  an  ad  valorem  stamp  wowld  suliice  in  such 
cases,  yet  till  the  legislature  so  declare  it,  no  other  than  the  particuhu- 
stamp,  appropriated  by  the  law  to  the  particular  instrument,  ran  be 

rn;)T.  B.-3"     0  Burr  irip.  r I;  I  St r.  62-1.    2S»r"S 


32  Of  the  IStawps  requirtd  [Cliap.  11, 

deemed  sufikienl ;  for  the  words  of  the  stamp  acts  were  express,  and 
coiikl  admit  of  no  other  interpretation. 

His  Lordship's  suggestion  of  the  propriety  of  an  ad  valorem  stamp 
1ms  not  escaped  the  attention  of  the  legislature  :  for  by  stat.  43  G.  3. 
c.  12?.  w  hich  recites  that,  \\'hereas  it  is  expedient  to  prevent  the  niul- 
lijilicatiun  of  stamps  upon  pieces  of  vellum,  parchment,  or  paper,  or 
other  ins^lruments,  matters,  or  things,  on  uliich  several  rates  are  by 
several  acts  of  parliament  imposed,  it  is  enacted  that  it  shall  be  lawful 
for  the  commissioners  for  managing  the  said  duties,  instead  of  the  dis- 
tinct stamps  directed  to  be  provided  to  denote  the  several  duties,  to 
cause  one  new  stamp  to  be  provided  to  denote  the  said  several  rates  and 
duties  from  time  to  time  as  they  shall  think  needful,  and  to  renew  or 
alter  the  same  as  occasion  shall  require,  s.  J. 

And  instruments  not  ha^  uig  the  stamp  of  the  proper  denomination 
ajid  value,  though  of  equal  or  greater  value,  may  be  stamped  without 
payment  of  the  51.  penalty  imposed  by  the  o7  G.  3.  c.  13G — s.  5.' 

And  it  is  further  enacted,  That  every  instrument,  although  stamped 
with  any  stamp  of  greater  value  than  that  required  by  law„sliall  be 
valid,  provided  such  stamp  be  of  the  denomination  required  lor  such 
instrument,  s.  6. 

Though  a  parol  lease  for  three  years  is  good,  yel  if  a  man,  through 
caution,  m  ill  reduce  it  into  writing,  he  must  pay  for  the  stamp,  other- 
wise the  court  are  inhibited  from  receiving  it  in  evidence  (o). 

Hut  w  here  a  party  enters  and  continues  in  possession  of  premises  for 
any  long  space  of  time,  as  for  eighteen  years,  under  articles  of  agree- 
ment for  a  lease,  which  were  not  stamped,  and  no  lease  ever  tendered 
or  demanded,  the  agreement  was  held  to  be  a  good  defence  against  an 
ejectment ;  for  though  it  is  in  law  a  lease,  and  therefore  ought  to  be 
stTimped,  it  would  be  set  up  in  equity  as  an  agreement :  tamcn  quere 
the  law  of  this  a<J  judication  {]/)  ? 

Where  an  instrument  contains  a  written  contract  of  demise  in  its 
general  terms,  with  a  several  operation  in  respect  to  the  difierent  tenants 
\\ho  sign  it  for  diilerent  estates,  at  the  diilerent  rents  set  opposite  their 
signatures,  and  one  stamp  only  appears  upon  the  paper,  it  is  matter  of 
evidence  to  which  contract  such  stamp  applies ;  and  the  circumstance  of 
juxta. position  of  the  stamp  to  tlie  defendants'  signature,  which  stood 
untouched,  while  the  other  names  appeared  to  be  cancelled  ;  'together 
w  ith  the  date  of  the  stamp-office  receipt  for  the  stamp  and  penalty, 
which  shewed  that  it  had  been  aHlxed  recently  before  the  trial ;  and 
there  being  no  evidence  of  a  dispute  with  any  other  tenant,  which  could 
m  ike  the  stamp  iiecessary  for  another  purpose ;  are  evidence  that  it  v  as 
intended  to  be  applied  to  the  contract  w  ith  the  defendant  (c). 

Hy  the  stanjp  act,  43  G.  3.  c.  1 19.  every  lease  for  a  term  not  cxcced- 

't;  iviii  N.  r  :«?.  '.h)rov^.m  >  nrast  2i! 


Sect.  Il.j  to  Ltasis,  Ai^reemtnts,  S'c.  X\ 

ihg  Iw  cnty-one  years,  at  a  yearly  rent  of  K V.  or  less,  and  withotiL  firje, 
'is  liahlc  to  a«luty  oi"  1/.  ami  every  lease  for  a  life  or  lives,  or  for  a 
term  «jf  ye irs,  (l;.tcnniiial)lc  u  itli  a  life  or  lives,  or  for  a  term  absolute, 
not  exceediii;^  forty  years,  made  in  consideration  of  a  line  not  exceedin-j; 
iiO/.  if  the  rent  shall  not  exceed  -iOi-.  is  liable  to  a  duty  of  1/.,  and  if  Uic 
rent  shalle>tci;ed  i'Ji.  to  aduty  of  1/.  lO*-.  Counttrparts  of  leases,  on 
■which  a  duty  of  I/,  is  imposed,  arc  subject  to  the  same  duty,  and  of 
other  leases,  to  a  duty  of  1/.  lOs.  Assi-^mncnts  on  the  sale  of  any  lease, 
or  any  interest  therein,  arc  mads  liable  to  an  ad  valorem  duty  ;  and  other 
assigmr.ciits  to  a  duty  of  J/.  JO*. 

By  tlie  same  act  every  schedule,  inventory,  or  cataloi^ue  of  any  lands, 
furniture,  livturej,  or  eJlects;  or  containins;  the  terms  and  contlitions 
Tif.uiy  lease  ;  or  regulations  for  the  cultivation  or  mana^enu  nt  of  any 
farm,  lands,  or  other  property  leased,  or  ai^reed  to  be  leased  ;  or  con- 
tainu»|^  any  other  matter  of  contract  or  stipulation,  which  shall  be 
referred  to  by,  and  be  intended  to  be  used  as  part  of,  any  af^recmcnt, 
lease,  itc.  but  which  sjiall  be  separate  and  distinct  therefrom,  is  charged 
Avitha  duty  of  1/.  and  a  further  duty  of  1/.  for  every  1080  word ». 
above  tlie  first  1080  vnrds. 


[     34     ] 
CHAPTER  111. 


0/  Ihc  Parties  to  a  Lease,  ivhcrein  hy  whom  a  Lease  may 

he  made. 


J^KiTioN  I.     Who  may  mcikc  Leases,  and  herein  of  Leases  hy 
Tenants  in  Fee  Simple. 

AV^ITH  respect  to  the  persons  who  are  capal>le,  by  the  common  Ia^v-, 
of  making"  leases,  it  may  l)e  laid  dow  n,  that  all  those  who  are  capable 
of  alienating  their  property,  or  of  entering  into  contracts  respecting  it, 
may  make  leases,  ^\'hich  will  endure  as  long  as  their  interest  in  the 
thing  leased,  but  no  longer  («). 

As  an  estate  in  fee  simple  is  the  largest  estate  which  a  man  can  have 
in  lands,  giviHg  him  a  full  dominion  over  property,  with  an  a])Solute 
power  of  alienation  ;  it  necessarily  includes  the  smaller  power  of  grant- 
ing leases,  which,  consequently,  he  may  do  without  limitation  or  re- 
straint. 

Section  II.     Of  Leases  by  Tenants  in  Tail. 

An  estate  in  fee  tail,  though  an  estate  of  inheritance,  is  of  a  limited 
nature;  being  a  gift  to  a  man  and  the  heirs  of  liis  l)ody,  wlio  are  pro- 
hibited from  alienation,  except  by  particular  modes  prescribed  by  law. 

If  tenant  in  tail  after  the  statute  de  donis  had  made  a  lease  for  years 
and  died,  the  lease  was  not  absolutely  determined  by  his  death,  but  the 
issue  in  tail  was  at  liberty  either  to  affirm  or  avoid  it,  as  he  thought  fit. 

Acceptance  by  tenant  in  tail  of  the  rent  or  fealty,  or  bringing  an 
action  for  the  recovery  thereof,  or  an  action  of  M-aste,  were  such  atts 
as  amounted  to  a  confirmation  of  the  lease,  because  these  plainly  mani- 
fested his  intent  to  continue  the  lessee  in  possession  upon  the  terms  of 
l)is  lease  ;  and  by  consequence  such  issue  could  never  afterwards  avoid 
it  during  his  own  life  (b). 

If  a  tenant  in  tail  makes  a  lease  to  A.  for  twenty  ye?.rs,  and  the  lessee 
makes  a  lease  to  B.  Cor  ten  years,  and  then  the  tenant  in  tail  dies,  and 
the  issue  accepts  the  rent  of  B.  this  is  no  aOirmation  of  the  lease, 
because  B.  was  under  no  obligation  to  pay  his  rent  to  him,  and  is 
answerable  for  it  over  again  to  A. ;  and  therefore  his  payment  to  the 
issue  in  tail  was  voluntary  and  in  his  own  wrong,  and  the  issues' 
acceptance  thereof  not  conclusive,  more  than  if  he  had  received  it  of  a 

(v;  Cm;  Dr,'.  I.ftcrr©  (i)  Cac.  AUr.  tit.  Leases (X>.) 


SLtt.  II.j  Of  Leases  hjj   Tenants  in   Tail.  3.^ 

mere  strani^er;  and,  by  coMM^fiucnrc,  the  is-nc  in  tail  may  entrr  aiiil 
avoid  the  lease  ;  Ijiit  if  tlie  issue  Jiad  accepted  the  rent  from  .7.  this  liad 
uinoiititcd  to  a  conrirmation  of  (lie  lease  made  to  A.  and  by  conscquenro 
he  could  not  after  avoid  the  lease  to  li.  which  was  derived  then'oiii(^;). 

But  if  .7.  h^id  a«si;<ncd  five  acr<  "•■  of  the.  land  in  lease  to  IL  for  the 
residue  of  twenty  years,  and  the  issue  in  tail  had  accepted  the  rent 
from  li.  this  would  amount  to  a  cotilirmilion  of  the  entire  lease  to  J. 
j)ccause  the  rent  issuing;  out  of  the  whole  and  out  of  every  part  of  the 
lauil,  li.  as  to  these  five  acres,  succcedcil  in  tiie  place  of  yl.  by  liaving 
his  whole  ujterest  therein;  and  then  the  issue  in  tail,  by  acceptance  of 
the  rent  from  one  whose  part,  as  to  him,  was  equally  chargeable  with 
the  whole  rent,  hath  given  his  consent  that  the  wliolc  estate  char:;eable 
Iherewitli  shall  continue,  thonL,di  lie  chose  to  take  Jiis  rent  out  of  part 
only ;  for  otiieruise  he  would  do  injustice  to  .7.  who  would  be  liable  to 
luakc recompence  to  li.  for  the  overplus  of  tlie  rent,  and  yet  liave  no 
recorapence  himself,  if  the  issue  might  defeat  the  residue  of  the  lease  re- 
niainini!;  in  his  handi  (^). 

If  a  tenant  in  tail  makes  a  lease  for  ten  year.?,  to  begin  ten  years 
hence,  and  dies,  and  the  issue  within  the  ten  years  enters  and  makes 
a  feoffment  in  fee,  tlie  feoffee,  at  the  end  of  the  ten  years,  shall  have 
election  either  to  alhrni  and  make  good  such  lease,  or  to  avoid  it ;  for 
upon  the  dcalli  of  tenant  in  tail,  tiic  possession  was  become  vacant, 
and  none  had  a  right  to  enter  but  the  issue  in  tail,  for  the  time  of  the 
lessee's  entry  was  not  yet  come  ;  tlien  when  the  issue  enters  f!;eneraHy, 
his  primary  right  was,  in  respect  of  the  inheritance,  descended  to  liiui 
as  issue  in  tail,  and  he  had  no  occasion  to  direct  his  entry  at  that  time 
to  any  other  purpose  ;  and  therefore  his  entry  shall  be  intended  in  re* 
sped  of  the  estate-tail  descended  to  him  ;  and  wlien  after  such  entry  he 
makes  a  feoflincnt  in  fee  to  a  stranger,  this  transfers  the  possession  juht 
in  the  same  plight  as  the  issue  in  tail  himself  had  ii,  av  ithout  any  thing 
done  to  determine  his  election,  one  way  or  anollicr  ;  and  then  the  same 
power  of  election  passes  incorjjoratetl  in  the  feolVment ;  and  the  fc(jiTee, 
when  the  time  for  making  use  thereof  is  come,  may  use  it  cither  to  de- 
termine the  lease  by  ousting  the  lessee,  or  to  affirm  or  make  it  good  by 
acceptance  of  rent  from  him. 

If  tenant  in  tail  make  a  lease  for  life,  whereby  he  gains  a  new  rever- 
sion in  fee  so  long  as  tenant  for  life  lives,  and  he  grants  a  rent-charge 
out  of  the  reversion,  and  afterwards  tenant  ice  life  dies,  whereby  the 
grantor  becomes  tenant  in  tail  again,  and  the  reversion  in  fee  is 
defeated  ;  yet,  because  the  grantor  had  a  right  of  the  ejitail  in  him, 
clothed  with  a  defeasible  fee  simi)ie,  tlie  rent-charge  remains  good 
against  liini,  but  not  against  his  issue  (r ). 

A  mati  seized  in  fee  made  a  lease  for  ninety-nine  years,  if  three  per- 

'(»■   Bar     A'.r  tit.  rf»««''"  *    ISiif  '^^  To  l,(K  .v<|J. ««. 


36  Of  Leases  by  Tenants  in  Tail,         [Chap.  III. 

sons  so  long  lived  ;  then  he  settled  the  reversion  upon  himself  in  tail, 
with  power  to  make  leases  for  twenty-one  years,  and  then  he  made  such 
a  lease  and  died  ;  the  son,  who  was  tlie  issue  in  tail,  levied  a  fine  and 
sokl  the  reversion ;  the  first  lease  determined,  and  the  court  thought  that 
the  cognizee  miijht  avoid  the  second  lease,  because  it  never  was  in  the 
election  of  the  tenant  in  tail,  or  his  issue  to  avoid  it,  they  having  con- 
veyed away  their  estates  before  this  second  lease  was  to  commence;  for 
if  tenant  in  tail  make  a  lease  to  commence  in  prasenti,  and  convey  away 
his  estate  by  fine,  the  cognizee  must  hold  it  charged  with  such  lease  ; 
but  if  it  be  to  commence  in  futuro,  it  is  otherwise,  because  it  cannot  be 
avoided  before  the  commencement.  Therefore,  if  tenant  in  tail  makes 
a  voidable  lease  for  years  or  life,  and  dies,  and  the  issue,  before  entry 
on  the  lessee,  levies  a  fine  to  a  stranger,  the  cognizee  shall  not  avoid 
the  lease,  because  such  lease  being  only  voidable  by  entry,  when  the 
issue  before  entry  conveys  over  the  land  by  fine,  the  power  of  entry, 
which  was  the  only  means  of  avoiding  such  lease,  is  by  the  fine  destroyed 
and  gone  ;  for  a  ri^ht  of  entry  cannot  be  transferred  to  a  stranger  any 
more  than  a  right  of  action  :  so,  if  the  tenant  in  tail  himself  after  such 
lease,  had  levied  a  fine  to  a  stranger,  or  even  to  the  reversioner,  and 
died,  yet  they  conld  not  avoid  the  lease  ever  after,  because,  if  they 
could,  it  must  be  by  reason  of  the  right  of  entry  transferred  by  the  fine, 
which  would  have  come  to  the  issue  if  no  such  fine  had  been  levied ;  and 
the  law  absolutely  condemns  all  alienations  of  right  only,  Ashether  it  be 
right  of  entry  or  of  action,  and  consequently  in  these  cases,  by  such 
alienation,  the  lease  is  become  al:>solute  and  unavoidable  {ci). 

If  tenant  in  tail  makes  a  lease  for  thirty  or  forty  years,  rendering 
rent,  and  dies  with  issue,  his  wiiQprivement  ciisicnl,  with  a  son,  and  the 
donor  enters,  and  as  to  himself  avoids  the  lease,  then  the  son  is  born, 
and  the  lessee  re-enters ;  the  son  at  full  age  may  either  affirm  or  avoid 
such  lease  as  he  thinks  fit  ;  for  the  lease  Mas  not  absolutely  determined 
or  avoided,  more  than  the  estatc-tail  itself,  out  of  which  it  was  derived, 
but  only  scrundum  </;//(/,  and  subject  to  be  set  up  again  upon  the  birth  of 
the  issue,  which  revived  the  estate-tail.  But  if  such  lease  were  made 
by  the  tenant  in  tail  before  marriage  rendering  rent,  and  then  he  married 
and  (lied,  leaving  his  \\\[t privoncnt  cnsicnt^  and  tlie  ilonor  enters,  and  as 
to  hiuiself  avoids  the  lease,  yet  if  the  wife  be  afterwards  endowed,  the 
lease  is  revived  as  against  her,  because  her  estate  is  quodam  inodo,  a  con- 
tinuance of  the  estate-tail  of  the  husband,  and  therefore,  revives  all 
charges  made  by  him  before  the  marriage:  but  if  the  wife  be  after 
df;livcred  of  a  son,  and  dies,  now  the  issue  may  airain  avoid  that  lease 
or  altirm  it,  as  he  thinks  fit  :  or  if  such  lease  were  made  after  marriage, 
and  the  wife  being  endowed  thereof,  avoids  that  lease,  yet  after  her 
death  the  issue  in  tail  riiay  revive  it ;  for  in  all  these  cases  the  avoidance 

(a;  Bar.  Abr.  Tit..  '•  Lcaee.s"  (D  )    3  Sail:.  33C.    4  Mod.  I. 


Sect,  ri.j  Of  Leases  hy  Ti  minis  in  Tall.  37 

of  such  leases  hcinc^nnly  by  those  wliohad  a  temporary  estate  or  inte- 
rest in  the  land,  it  (Mtiiutt  bind  those  wlio  siirccedetl  to  tlie  iiihcrit.inrc 
thereof,  Ivit  that  they  may,  iftliey  think  (it,  re.eptal)li'-h  and  set  up  such 
lease  again,  which,  as  to  them,  uas  at  first  only  voidable,  and  not  abso- 
lutely voiil.  And  herein  a  lease  at  common  law  hy  the  tenant  in  tiil 
diiTer?  from  rent  granted  I)y  such  tenant  which  is  void  by  tiiedcalli  of 
the  grantor ;  wliereas  a  lease  is  only  voidable  by  tlie  issue  in  tail,  whose 
acceptance  of  rcfit  amounts  to  a  confirmation  («). 

r oner  to  Ifctsc  1)1/  the  cuabUnfr  stntvtr. — Thus,  by  the  common-law, 
tenant  in  tail  could  make  no  leases  which  should  bind  his  issue  in  tail, 
or  the  reversioner  ;  to  remedy  which,  the  statute  3^  Hen.  8.  c.  28.  com- 
monly called  77(c  r.nabliiK!;  Statute,  (Ji    was  passed. 

By  this  statute,  any  person  whatsoever,  of  fiUI  age,  that  hat!>  any 
estate  of  inheritance  in  fee  tail  in  his  own  right  of  any  lands,  tenements, 
or  hereditaments,  may  at  this  day,  witliout  fine  or  recovery,  make 
leases  of  such  lands  for  lives  or  years,  and  such  leases  shall  be  good;  so 
as  these  conditions  follow int;  be  observed. 

1.  Such  lease  must  be  by  indenture  ;  and  not  l)y  deed-poll  or  by 
parol. 

2.  It  must  be  made  to  begin  from  the  day  of  the  making  thereof,  or 
from  the  making  thereof:  therefore  a  lease  made  to  begin  from  MU 
chnelmas,  which  shall  be  three  years  after,  for  twenty-one  years ;  or  a 
lease  made  to  begin  after  the  death  of  the  tenant  in  tail,  f(jr  twenty-one 
years,  is  not  good.  But  a  lease  made  for  twenty  years,  to  begin  at 
Michaelmas  next,  it  seems  is  a  good  lease  ;  for 

;i.  If  there  be  an  old  lease  in  being,  of  the  land,  the  same  must  l)e 
expired,  surrendered,  or  ended  within  a  year  of  the  time  of  the 
making  of  the  new  lease;  and  this  surrender  must  be  absolute  and 
not  conditional ;  also,  it  nuist  be  real,  and  not  illusory,  or  in  shew  only. 
Therefore, 

4.  There  must  not  be  a  double  or  concurrent  lease  in  being  at  one 
time;  as  if  a  lease  for  years  be  made  according  to  the  statute,  he  in 
reversion  cannot  afterwards  expulse  the  lessee,  and  make  a  lease  for  life 
or  livcF,or  another  lease  for  years  according  to  the  statute,norc  eotiveran. 

But  if  a  lease  for  years  be  made  to  one,  and  afterwards  a  lease  for 
life  is  m  ide  to  another,  an  1  a  letter  of  attorney  is  made  to  give  livery  of 
seisin  upon  the  lease  for  life,  and  before  the  livery  made  the  firbt  lease  is 
surrendered,  in  this  case,  the  second  lease  is  good. 

5.  These  leases  must  not  exceed  tliree  lives,  or  twenty-one  years 
from  the  lime  of  making  them ;  for  the  words  of  the  statute  are  to 
make  a  lease  for  three  lives,  or  twenty-one  years,  so  that  cither  the  one 
or  the  other  may  be  made,  but  not  both.  Therefore,  if  tenani  in  tail 
make  a  lease  for  twenty-two,  or  for  forty  years,  or  lor  four  lives  :  this 

,ai  Crvlte'sDi:  •  ■    ''        '    •    i.     Um.  Abr.  til    "Grai)f  l;5      SLd.Rayo  t;?. 
i6)  3i'  H  8  c.  'I-i. 

7 


38  Of  Leases  hi/  Temmls  in  Tail         [Cliap.  III. 

lease  is  Aoic],aiKl  that  not  only  for  the  overplus  of  time  more  than 
three  Jives,  or  t\\enty-one  yearp,  but  for  that  time  of  three  lives 
or  l^\en{y-one  years  also;  and  it  hath  been  resolved,  that  if  tenant 
in  tail  make  a  lease  for  ninety-nine  years,  determinable  upon  three 
lives ;  that  this  is  not  a  good  lease.  But  if  a  lease  be  made  by  a 
tenant  in  tail  for  a  lesser  time,  as  for  two  lives,  or  for  twenty  years ;  this 
is  a  good  lease.  If  a  lease  be  jnade  for  four  lives,  and  it  happens 
that  one  of  the  lives  die  before  the  tenant  in  tail  di^* ;  yet  this  acci- 
dent will  not  make  the  lease  good,  but  it  remains  voidable  notwith- 
standing. 

0.  These  leases  must  be  of  lands,  tenements,  or  hereditaments,  ma- 
nurable  or  corporeal,  which  are  necessary  to  be  let,  and  whereout  a  rent 
J)y  law  may  be  issuing  and  reserved.  Therefore,  if  a  tenant  in  tail, 
make  a  lease  of  such  a  thing  as  doth  lie  in  grant,  as  an  advowson,  fair, 
market,  franchise,  or  the  like,  out  of  whicli  a  rent  cannot  be  reserved, 
especially  if  it  be  a  lease  for  life  ;  this  lease  is  void,  and  that  albeit  the 
thing  have  been  anciently  and  accustomably  let.  A  grant  of  rent- 
charge,  therefore,  out  of  such  lands  is  void  ;  and  if  a  tenant  in  tail 
make  a  lease  for  three  lives  of  a  portion  of  tithes  rendering  rent ;  this 
lease  is  luiqueslionably  void  ;  so  also  it  seems  it  is,  if  it  be  a  lease  of 
twenty-one  years. — But  now  by  the  statute  .5  G.  3.  c.  17.  a  lease  of 
tithes,  or  other  incorporeal  hereditajuents  alone,  may  be  granted  by 
any  bishop,  or  any  such  ecclesiasticaJ  or  eleemosynary  corporation,  and 
the  successor  shall  be  entitled  to  recover  the  rent  by  an  action  of  debf^ 
which  (incase  of  a  freehold  lease)  he  could  not  have  broiight  at  com- 
mon law. 

7.  They  must  be  of  such  lands  or  tenements,  Avhich  have  been  most 
commonly  let  to  farm,  or  occupied  by  the  farmers  thereof,  by  the  space 
of  twenty  years  next  before  the  lease  made  ;  so  as  if  it  had  been  let  for 
eleven  years,  at  one  or  several  times  within  twenty  years  before  the 
new  lease  made,  it  is  suIFicient.  Albeit  the  letting  have  Ijeen  by  copy 
of  court-roll  only,  yet  such  a  letting  in  fee,  for  life,  or  years,  is  a 
sufficient  letting,  and  so  aslo  is  a  letting  at  will  by  the  common  Jaw.  But 
these  lettings  to  farm  must  be  made  l)y  such  as  are  seised  of  an  estate 
of  inheritance  :  for  if  it  have  been  only  by  guardian  in  chivalry,  [now 
abolishedl  tenant  by  the  courtesy,  in  dower,  or  the  like  ;  this  w  iJl  not 
serve  to  be  a  Jetting  within  the  intent  of  the  statute. 

8.  There  must  be  reserved  upon  sucli  leases  yearly,  during  tlie  same 
leases,  due  and  payable  to  the  lessor  and  his  heirs  to  whom  the  rever- 
sion shall  appertain,  so  much  yearly  farm  or  rent,  or  more,  as  hath 
been  most  accustomably  yielded  or  paid  for  the  lands,  &c.  within 
twenty  years  next  before  such  lease  made.  Therefore,  if  the  rent  be 
reserved  but  for  part  of  the  time  of  the  new  lease,  this  lease  is  void. 
So,  if  the  tenant  in  tail  have  twenty  acres  of  land  that  have  been  ac» 
customably  let,  and  lie  make  a  lease  of  these  twenty  acres,  and  of  one  acre 


Sect.  II.]         Of  fj(tis(s  hi/   7\nanls  In    Tail.  3{) 

more  which  hath  not  been  acciistoin.iMy  let,  rcservinijthe  usual  yearly 
rent,  and  so  nuiclj  more  as  to  exceed  the  vahie  of  the  other  acre  ;  this 
is  not  ai^ood  lease  hy  tiic  staltile.  So,  if  the  tenant  in  tail  wi  t\\olarnis, 
the  one  at  twenty  pounds  rent,  the  oilier  at  ten  j)onn(h  rent,  make  a 
lease  of  holh  thc^t;  farms  together,  at  thirty  pounds  reni,  this  is  not  a 
good  lease  uithinthe  statute.  But  if  hesiiles  the  annual  rent,  there 
have  been  fonncrly  reserved  things  not  annual,  as  heriots,  fines  or  other 
proht,  upon  the  death  of  the  farmers,  or  proht  out  of  another's  soil, 
as  pasturage  for  a  colt,  A'r.  if  iipon  the  uew  lease  the  yearly  rent  be 
reserved,  albeit  tliese  collateral  reservations  bcomitteil,  yet  these  leases 
are  good.  So,  also,  if  there  be  more  rent  reserved  upon  the  new  lease 
than  the  rent  that  hath  l)een  anricnily  paid,  the  lease  is  nood  notwith- 
Ftatulin^^  So,  (ji)  if  tenant  in  tail  of  land,  let  a  })art  of  it  that  halh 
been  accustomably  let,  and  reserve  the  rent  pro  rain,  or  more,  this  is 
good,  for  that  is  in  substance  the  accustomabic  rent.  Also,  if  two  co- 
jiarcei^rs  be  tenants  in  tail  of  twenty  acres,  eviry  one  of  erjual  value, 
and  accustomably  letten,  and  they  make  partition  so  as  each  have  ten 
acres,  they  may  make  leases  of  their  several  parts  of  eacli  of  tliem,  re- 
serving the  half  of  the  accustomable  rent.  If  the  accustomable  rent 
had  been  payable  at  four  days  or  feasts  of  the  year,  yet  if  it  be  reserved 
yearly,  payable  at  one  feast,  it  is  sufhcient,  for  the  words  of  the  statute 
are,  to  be  reserved  yearly.  On  a  fpiestion,  whether  the  reservation  of 
the  ancient  "  copyhold,"  rent  or  more,  in  a  lease  made  by  tenant  in  tail, 
would  answer  the  description  of  the  ancient  "  accustomed"  rent,  with- 
in the  statute,  it  waslield  that  it  would  (/>). 

\).  Such  leases  must  not  be  mad(^  without  impeachment  of  waste. 
Therefore,  if  a  lease  be  made  for  life,  the  remainder  for  lifc,(^'c.  tlii- 
is  not  warranted  by  the  statute,  b'icause  it  is  dispunishable  of  waste. 
Bui,  if  a  lease  be  matle  to  one  durinq  three  lives,  this  is  good;  for  the 
occupant,  if  any  happen,  shall  be  punished  for  waste.  Prebend  makes 
a  lease  for  years,  reserving^  the  runnini^  of  a  colt,  rendering  rent,  a  new 
lease,  rendering  the  same  rent,  \vithout  reserving  the  running  of  a 
colt,  adjudged  good;  because  f/uoad  this,  it  is  neither  reservation,  nor 
e.xception.  But  if  a  lease  be  of  a  manor,  except  the  woods,  rendering 
rent,  and  after  the  expiration  of  it,  there  is  a  new  lease  rendering  the 
same  rent  without  sucli  exec j)t ion,  the  second  lease  is  bail  (r). 

By  this  statute,  then,  a  tenant  in  tail  is  enabled  to  grant  such 
leases  as  shall  bind  his  issue  in  tail ;  though  not  those  in  rcmaintler  or 
reversion. 

If  tenant  in  tail  male  demise  for  a  term  of  ninety-nine  years,  and  his 
lessee  assign  over  to  another,  but  before  such  assigunient  tenant  in  tail 
male  dies  without  issue  male, no  a("lionofcoveiiantupon  the  lease  can  be 
maintained  against  the  representatives  of  t!ic  grantor  by  such  assi^^nee 

fn  I  Co.  Lit.  4t  C  0     Miroro   741.  .*'    Muxie.i 


40  Of  Leases  hy  Ttnunls  in  Tail.  [Chap.  ill. 

the  lease  heino;  void  at  the  the  time  of  the  assigninent,  and  no  interest 
passing  under  it  (a). 

Tenant  in  tail  male,  had  issue  two  sons  ])y  divers  venters,  and  died  ; 
the  eldest  son  entered  and  made  a  lease  for  twenty-one  years,  reserving 
rent  treneraljy  to  him  and  lils  heirs  and  assigns,  and  died  m  ithtnit  issue, 
leaving  two  sisters  his  heirs  at  law  ;  and  if  l)y  this  reservation,  the  rent 
belonged  to  the  second  brother,  to  w  horn  the  reversion  descended,  as 
heir  male  of  the  body  of  the  father,  w  as  the  question  ;  for  if  not,  then 
the  lease  could  not  bind  him  within  32  //.  8.  r.  28  ;  and  it  vras  adjudged 
to  be  a  gnod  lca.':e,  and  that  tlie  rent  shouM  go  alon^;  with  the  rever- 
sion ;  for  the  words  of  tlie  statute  are,  that  the  rent  shall  be  reserved 
to  tlie  lessor  his  heirs,  or  "  to  those  to  whom  the  lands  would  go  if  no 
such  lease  had  been  made  ;"  and  here  the  intent  was,  that  the  rent 
should  go  along  with  the  reversion  ;  and  so  it  may  here,  for  rent  na- 
turally follows  the  reversion,  and  the  second  brother  is  heir  to  the  intail 
and  reversion,  though  not  to  the  lessor  (A). 

Tenant  in  tail  makes  a  lease  for  twenty  years,  rendering  the  usual 
rent,  habendum  kom  Michaelmas  next  ensuing:  (r)  this  seems  a  good 
lease,  though  it  did  not  begin  from  the  making  of  the  lease,  according 
to  the  proviso  32  //.  8.  c.  28.  for  the  intent  of  the  statute  was  only 
that  the  lease  should  not  exceed  the  number  of  twenty-one  j^ears  from 
the  making,  which  this  lease  did  not,  and  in  the  niargent,  a  case  is  of 
Thompson  and  Traford,  [Poph.  8.]  S5  Eliz.  in  B.  R.  cited  to  be  ad- 
judged,/jer  totam  curiam,  that  it  was  a  good  lease,  and  well  warranted 
by  the  statute  :  though  my  Lord  Coke  lays  it  down  for  one  of  his  rtiles, 
that  leases  upon  that  statute  are  not  good  if  they  do  not  commence 
from  the  day  of  the  making,  which  perhaps  maybe  reconciled  upon 
the  same  diversity,  where  they  are  under  twenty-one  years  and  where 
not  so,  th?it  from  the  time  of  the  sealing  and  executing  the  lease,  till  the 
expiration  thereof,  there  does  not  intervene  more  than  twenty-one  years. 
3'or,  if  the  commencement  of  the  lease  be  at  such  a  distance,  that  be- 
tu  ecu  the  time  of  the  sealing  and  executing  thereof,  and  the  expiration, 
there  do  not  intervene  above  twenty-one  years,  then  such  lease  seems  to 
be  without  any  aid  from  this  statute,  thoush  the  time  for  continuarlce 
thereof  in  the  possession  of  the  lessee  be  imder  twenty-one  years;  for 
otherwise  the  tenant  in  tail  might  so  procrastinate  the  commencement 
of  the  lease,  as  to  have  always  the  greatest  part  of  the  twenty-one  years 
running  out  in  tlic  time  of  hi^  issue,  w  hich  the  statute  never  intended 
to  countenance. 

So,  where  one  made  a  lease  for  ten  years,  and  after  made  another 

lease  for  eleven  years,  both  these  leases  are  good,  because  they  do  not 

in  all  exceed  twenty-one  years,  and  so  the  inheritance  is  not  charged 

with  mare  than  a  lease  for  twenty-one  years,  which  the  statute  allows  (r/). 

Copyholds  are  not  within  the  statute. 

(<i)  1  P.os.  k  PuV.  K.  R  ;.'i8.  (h)  Ba-on  Abr.  tit.""  Leases,"  (D).  B 

0=)  Ibid.'  («)  Ibid. 


Sect.  IV.j  Of  Liuscs  (>!/  'f cut  III  Jot-  Iajc.  41 

Skciion   III.     Of    l.tascsbi)  Titiont  In  7 ail  tiff; r  possihllitij 
of  Issue  ixtiiul. 

TJiis  estate  is  u  licrc  one  is  tenant  in  special  tail,  and  llie  person  from 
whose  1)oiIy  the  issue  was  to  sprint?,  dies  witliout  issue,  or  having  issue 
that  issue  l»ccoi«'^s  extinct  [a).  'J'hc  law  looks  upon  this  cttate  as 
c<iuivalent  to  an  estate  for  life  only,  and  in  truth  the  tenant  is  only 
ttnajit  for  life,  and  is  pcrnutted  to  exchange  his  estate  u it h  a  tenant 
for  life;  an  exchange  that  can  only  hu  uiailc  of  estates  that  are  equal 
in  thrir  nature. 

His  i)ow»r  to  demise,  therefore,  will  come  more  properly  nithin  th' 
consideration  oi  the  iiCAt  subject. 


Skction  IV.     Of  Lcafics  hi/    Tenant  fur  L,ifc ;  ahsolntc  vr 

continffcnl. 

Tenant  for  life  can  make  no  leases  to  continue  longer  than  his  own 
life  ;  for  his  leases  are  absolutely  void  at  his  death  (/y). 

Tlins  (' )  where  tenant  for  life  leased  premises  for  twenty-one  years, 
and  before  the  expiration  of  that  term  died;  the  trustees  of  the  re- 
maind'.r-man,  then  an  infant,  continued  to  receive  the  rent  reserved, 
and  he,  on  coming  of  age,  sold  the  premises  by  auction ;  in  the  condi- 
tions of  sale  the  premises  were  declared  to  be  subject  to  the  leas(>,  and 
in  the  conveyance  lo  the  purclms t,  the  lease  was  referred  to  a?  in  the 
possession  of  the  lessee;  and  in  the  covenant  against  incumt)ranccs, 
that  lease  was  excepted  ;  the  purchaser  mortj;aged,  ami  in  the  mortgage 
deeds  the  like  notice  was  taken  of  the  lease,  and  the  niortga;:;ec  for 
some  time  received  the  rent  reserved  :  held  that  the  lease  expired  w  ith 
the  interest  of  the  tenant  for  life,  and  that  the  notice  suice  taken  of  it 
did  not  operate  as  a  new  lease. 

Thertf  )re  a  lease  so  rendered  void  acjainst  him  in  remainder,  cannot 
be  set  up  in  a  court  of  law  by  sucli  remainder-man's  acceptance  of  rent . 
and  suli'erin:;:  the  tenint  to  make  improvements  after  his  interest  vcst^ 
in  possession  (W). — But  when  the  remainder-man  lies  !)y,  and  sulfersthc 
lessee  or  assignee  to  rebuild,  and  docs  not  by  his  answer  deny  that  lie 
had  notice  of  it,  all  Ihesc  circumstances  taken  together,  will  bind  hint 
in  a  court  of  equity  from  controverting  the  lease  afterwards. 

Also,  a  lease  executed  by  a  tenant  for  life,  in  which  the  reversionci , 
who  was  then  under  age,  is  named,  but  which  was  not  executed  by 
})im,  is  void  on  the  death  of  the  tenant  for  life,  and  an  execution  by 

(a)::n'  com.  \2l.  (b)l\»r   Ahr.Ut.  "  I.nasM,"  (I.)  (en  B<k.  (i  PuM  .'.''.■ 

(dJDoui.iO     Cowp  4E2.     Bull  N.  P.  9C.    "JTIt.niTB.    3AU.3W 


42  Of  Leases  by  Tenants  for  Life.      [Chap.  III. 

the  reversioner  afterwards  is  no  confirmation  of  it,  so  as  to  bind  tlie 
lessee,  for  it  is  not  his  covenant  {a). 

But  if  tenant  for  life  makes  a  lease  for  twenty  years  generally,  and 
afterwards  he  in  reversion  confirms  that  lease,  and  then  the  tenant  for 
life  dies ;  though  this  at  first  would  have  determined  by  the  death  of  the 
lessor,  yet  the  confirmation  hath  made  it  good  for  the  whole  term  (h). 
But  if  the  lease  had  been  for  twenty  years,  if  the  lessor  tenant  for  life 
should  so  long  live,  there,  if  the  reversioner  had  confirmed  this  lease, 
j'et  it  would  not  prevent  it^  voidance  upon  the  death  of  the  tenant  for 
life. 

The  diversity  between  which  cases  is  this :  (r)  that  in  the  first  case, 
tlic  lease  being  made  generally  for  twenty  years,  nothing  appears  to  the 
contrary,  but  that  it  was  a  good  lease  for  that  time  absolutely  ;  for  the 
death  of  the  lessor,  which  would  determine  it  sooner,  does  not  appear 
in  the  lease  itself;  then  when  the  reversioner,  who  alone  could  take 
advantage  of  that  implied  limitation,  thinks  fit  to  waive  it,  and  confirms 
the  lease  as  it  was  made  at  first  for  twenty  years  absolutely,  this  makes 
it  his  oirn  lease,  for  so  much  of  the  time  as  would  have  fallen  into  his 
reversion  by  the  death  of  the  tenant  for  life  being  made  the  express  li- 
mitation and  circumscription  of  the  twenty  years  in  the  lease  itself,  no 
confirmation  of  that  lease  so  limited  can  enlarge  it  to  extend  beyond  the 
life  of  the  lessor,  that  being  the  express  determination  afiixed  to  it. — 
For  although  we  find  one  case,  where  it  is  held,  that  if  a  man  makes  a 
lease  for  twenty-one  years,  if  the  lessee  so  long  live,  and  afterwards  the 
lessor  and  lessee  join  in  a  grant  by  deed  of  the  term  to  another,  after 
which  the  first  lessee  dies  witliin  the  twenty-one  years,  yet  the  grantee 
shall  enjoy  it  during  the  residue  of  the  term  absolutely.  To  reconcile 
this  case  with  the  other,  it  must  l)e  intended,  that  in  the  assignment 
ro  notice  is  taken  of  the  express  limitation  affixed  to  the  lease,  but 
tiiat  they  joined  in  an  assignment  of  the  lease,  for  the  residue  of  the 
twenty-one  years,  and  then  it  may  be  mcII  construed  to  amount  to  a 
fOTijirmation,  by  the  lessor  £or  that  time,  as  the  lessor  may  confirm  the 
lantl  to  the  lessee  for  any  longer  time,  and  thereby  enlarge  his  estate  or 
int>"rcst. 

B.  tenant  for  the  life  of  C.  and  he  in  remainder  or'reversion  in  fee 
join  in  a  lease  for  years  l)y  indenture  {d);  this  during  the  life  of  C.  is  the 
lease  of  JL  \rIio  then  only  had  \he  present  interest  in  the  lands,  and  the 
confirmation  of  him  in  Ihe  remainder  or  reversion  ;  but  after  the  death 
of  C.  then  this  becomes  the  lease  of  him  in  the  reversion  or  remainder, 
and  tlu;  confirmation  of  li. ;  for  the  lessors  having  several  estates  in 
tliem  in  several  degrees,  the  lease  shall  be  construed  to  move  out  jof 
each  one's  respective  estate  or  interest,  as  they  become  capal)le  of  sup- 
porting it,  which  is  the  most  natural  and  useful  construction  of  the. 

ro)IT.Rsr  ir6)Bj;.  .iLr.  fit   "t(nr3BV'('t.  i.  (&)  Ibifl/  ('d)  Ihid- 


Sect.   V  f.]     Of  Leases  hi/  Tenant  htj  Citrltsy,  AV.  4;^ 

lease,  especially  a<:  there  can  be  no  estoppel  in  this  case,  by  rcasiju  nf 
the  .«-cvcral  interests  which  passed  from  carli.  Therefore  during;  the 
life  of  tenant  for  life,  if  the  lessee,  luinj;  evicted, should  declare  of  ;i 
lease  for  both  ;  this  would  be  against  him,  as  was  adjudged,  be<:aiisc 
for  tliat  time  it  uas  only  the  l<:asc'  of  tlic  tenant  for  life. 

A.  lessee  for  life  makes  a  lease  to  li.  and  (\  on  condition  that  if  tbcy 
die  leaving  A.  then  the  land  shall  revert  to  ,/.  without  delermininij 
any  estate  certain  in  the  grant  ;  all  the  estate  parses  under  the  rondi- 
dition,for  in  pradpc  A.  uas  not  received  on  default  of//,  and  ('  (n). 

If  tenant  for  life  and  he  in  remainder  in  tail  join  in  a  lea.-e  to  A. 
for  life,  remainder  to  B.  for  life,  and  the  is^iie  in  t.iil  accepts  liie  rent 
of  A.  and  levies  a  fine,  the  lease  in  remainder  is  good,  notwithstandin'^ 
the  feoil'ment  (A). 

Where  lessee  for  life  makes  a  lease  for  years,  excepting  the  wood, 
underwood,  and  trees  growing  upon  the  land,  it  is  a  good  exception, 
although  he  has  no  interest  in  them  but  as  lessee,  because  he  remains 
always  tenant,  and  is  chargeable  in  waste;  wherefore  to  prcvciit  it,  he 
may  make  the  exception. — But  if  lessee  for  years  assign  over  his  term, 
with  such  an  exception,  it  is  a  void  exception  (r). 

►Section  V.     Of  Leases  hi/  Tenants  pour  autre   Vie. 

Where  a  person  holds  for  tlie  term  of  another's  life,  he  is  called 
ttxmnX,  pnur  autre  vie  ;  and  leases  made  by  him  of  course  determine  on 
tlie  death  of  tlic  cestui  que  vir,  or  person  during  wliosc  life  he  h«)hls, 
but  not  on  his  own  death;  for  by  the  statute  of  Frauds  every  estate 
poi/r  rt.v/ re  z'/c  is  made  devisable,and  if  not  devised,  it  shall  be  assets 
intlie  hands  of  the  heir,  if  limited  to  the  heir;  if  not  limited  to  the 
heir,  it  shall  go  to  the  executor  or  administrator  of  the  grantee,  aud  be 
assets  in  their  hands. 

Section  VI.     Of  Leases  hy  Tenant  hy  the  Curtesy  of  Eng- 
land ;  in  Dower ;  or  Jointure. 

Tenant  by  tlie  curb-y  i;-  w  here  a  man  marries  a  woman  seised  of  an 
estate  of  inheritance,  and  has  by  her  issue  born  alive,  which  was  ca- 
pable of  inheriting  her  estate  {d).  Tenancy  in  dower,  is  where  tlie  hus- 
Ijand  of  a  Moman  dies,  with  or  without  issue,  in  which  c,;se,  th'- wife 
shall  have  the  third  part  of  all  the  lands  and  tenemc!its  whereof  he 
M  as  seised  for  an  estate  of  inhcrftance  at  any  time  during  the  covert  ore. 

(a)  Co.  Lit  c- «.  i.  56  n     '  '. )  Cm.  Rlit.  2V: 

ft'  Crr    '.,      ■■*■  •    -■■     '      •    I 


41  Of  Leases  under  Poivers.  [Ciiap.  HI. 

to  hold  to  hert^elf  during  the  term  of  her  natural  life.  Tenant  in 
•jointure  is  by  the  27th  //.  8.  c.  10.  commonly  called  the  statute  of 
Uses,  by  which  dower  may  be  barred  by  a  jointure,  or  by  conveying  a 
joint  estate  to  iiusband  and  wife  ,  but  in  common  acceptation,  it  means 
a  sole  estate  limited  to  the  wife  only  (^0- 

As  to  these  respective  estates,  it  will  be  sufficient  to  observe,  that  if 
cither  of  the  tenants  make  a  lease  for  years,  reserving  rent,  and  die, 
this  lease  is  absolutely  determined,  so  that  no  acceptance  of  rent  by  the 
heir  or  those  in  reversion  can  make  it  good  ;  for  though  their  estate  is 
qxiodovi  modo,  a  contmuance  of  the  estate  of  the  husband  or  wife,  yet  it 
Is  a  continuance  only  for  life,  and  they  have  no  power  to  contract  for, 
or  intermeddle  ^vith,  the  inheritance,  and  consequently  their  leases  or 
charges  fall  oif  with  the  estate  whereout  they  were  derived,  and  the 
lessee  is  become  tenant  by  sufferance  by  his  continuance  of  possession 
after  (Ik) 


Section  VII.     Of  Leases  under  Poivers. 

Lord  Mansfield  has  observed,  (r)  that  of  all  kinds  of  powers,  the 
most  frequent  is  that  "  to  make  leases."  Though  it  may  not  now  per- 
liaps  be  the  most  frequent,  it  is  certainly  one  of  the  most  useful,  as  it 
is  highly  necessary  for  the  encouragement  of  farmers  to  occupy,  stock, 
and  improve  the  land,  that  they  should  have  some  permanent  interest, 
f  f  the  owner  of  the  estate  for  life  was  not  enabled  to  make  a  permanent 
lease,  he  could  not  enjoy  to  the  best  advantage  during  his  own  time  ; 
and  they  who  came  after  must  suffer,  by  the  land  being  untenanted,  out 
of  repair,  aiul  in  a  bad  condition.  The  plan  of  this  power  is  for  the 
mutual  advantage  of  possessor  and  successor.  The  execution  of  it  is 
checked  by  many  conditions,  to  guard  the  successor,  so  that  the  annual 
revenue  may  not  be  diminished,  nor  those  in  remainder  prejudiced  in 
point  of  remedy,  or  other  circumstances  of  full  and  ample  enjoyment. 

The  limitation  and  modifying  of  estates  by  virtue  of  powers,  came 
from  equity  into  the  common  law  with  the  statute  of  Uses  [d) :  as  there- 
fore powers  came  into  the  courts  of  law  with  the  statute  of  Uses,  so  the 
construction  of  them,  by  the  express  direction  of  the  statute,  must  be 
the  same  as  in  courts  of  equity  (r)  ;  for  whatc\^er  is  a  good  power  or 
execution  in  equity,  the  statute  makes  good  at  law  (/).  As  powers 
arc  derived  from  equity,  and  ought  even  at  law  to  be  construed  equi- 
lahly,  so  in  the  construction  of  powers  originally  in  their  nature  legal, 
courts  of  equity  must  follow  the  lav/,  bo  the  consitlcration  ever  so  me- 
ritorious. 

(o)  cm.  Com."..',.  (t)  Bac.  Abr.  tit.  "  leases,"  (I.)  1  Cro  Car.  39B. 

{,<:)  1  Burr.  IL'O.  IL'I.    SirgJ.  on  Powers   17.'  (d)  1  Burr.  120. 

'«•  Dour  21)3.  (J)  2  3nrr.  H-lB.  1  Bl.  R.  283. 


,St(l.  VII.]  Of  Lfases  under  Powers.  45 

The  circiimslaiiccs  attending  the  execution  of  ?iirU  leafcs  mny  I»c 
considered,!.  With  respect  to  the  hissor;  ti.  to  the  lessee ;  «3.  to  the 
hTibjcct  on  which  tiie  power  is  to  operate  ;  i.  to  thc<juaiity  ami  qu,ui- 
tity  ofinler"^'-  !>'•  ty  v''l<<!  :  •"''.  1. 1 '..■  .,.>;i  .  c,  t,,  ;);.■  i.-.m  ■.!  i -•- 
Ifiise  (d). 

I.   \\ith  respect  to  the  les.-^ui. 

lie  nuit^t,  ais  we  have  o!)servcd,  piuMu-  ihc  j  i\Mr  r.niiv.  ii '•■- 
iiaut  for  life,  therefore,  has  a  special  power  of  i^ranting  leases  for  a 
longer  leriu  than  his  own  life,  upon  his  death  the  lease  is  void,  unlfss 
he  has  strictly  ptusuod  the  power  (/<).  So,  tenant  for  life,  w  ilh  pow  (  r 
of  leasing  under  certain  conditions,  niuht  deniiM!  in  strict  conlbrmity 
with  those  conditions  (r).  Indeed  in  respect  to  the  execution  of 
powers  ((/),  courtsof  justice  haAC  always  loolvcd  with  a  jealous  eyi  to 
see  that  the  conditions  in  favour  ol  the  next  laker  be  pursued,  not  li- 
terally  only,  but  substantially. 

So,  tenant  for  life,  w  ith  power  to  make  leases,  for  three  lives,  or 
Iwenty-oiic  years,  cannot  make  such  leases  by  letter  of  attorney,  by 
virtue  of  I:is  power  (c)  ;  because  sucJi  leases  not  \mi)j;  derived  out  of 
the  interest  of  the  tenant  for  lifi',  but  by  ;iu  authority  derived  from 
the  tenant  in  fee,  and  to  charge  the  estate  of  third  persons,  the  trust 
for  that  purpose  is  personal,  and  cannot  be  delea;ated  to  an(»thcr. 

It  has  also  been  determined,  that  where  a  power  of  leasing  was  given 
to  the  father,  tenant  for  life,  and  after  liis  decease,  to  the  son,  tenant 
for  life,  and  the  son  obtained  a  i^rant  from  the  father,  of  Jiis  iife  estate, 
(without  noticing  the  power)  subject  to  a  certain  rent,  with  a  power  nf 
re-entry  for  non-payment  ;  the  son,  during  the  life-time  of  his  fat.her, 
could  not  lease  under  tlie  power  (/'). 

A  power  to  make  leases  generally,  extends  only  to  leases  in  posses- 
sion, and  n(jt  to  leases  in  reversion,  or  in  futuro  (§•). 

The  grant  of  a  lease  need  not  be  in  actual  jjosscssion,  but  a  con- 
structive possession,  by  the  receipt  of  tlie  rents  and  prcGts,  is  a  suili- 
cientconipliar.ee  w  itli  the  power.  If  actual  possession  were  necessary, 
a  leasing  power  could  never  be  executed  where  the  land  is  in  the  hands 
of  a  tenant  (/<). 

Therefore,  w  here  a  tenant  for  life,  with  pow  cr  to  grunt  lease,  in 
possession  for  tw  enty.one  years  at  .the  best  rent,  conveyed  his  lilV-Cbtate 
to  trustees  to  pay  an  annuity  for  his  life,  and  the  surplus  to  himself; 
the  power  was  held  to  be  not  thereby  extingui.^hed,  but  he  miL;ht  still 
grant  alease  agreeabieto  the  terms  thereof  (/). 
2.  With  respect  to  the  lessee. 
The  lessee,  in  a  lease  under  a   power,    must,  il.  should  .^eem.  be  a 


(n)  Powell  on  Pow.  390 

(l<)  1  T.  B   71" J 

5  T   11   567. 

re)  C  Bro.  Cas.in  l'»rl.  IT.";. 

(it)  1  Burr   ICI. 

(«)  a  Co.  78. 

'/)    \:\  r«t    H     f" 

'f^  Cro  J»c 

:il8.     1  Com   H 

*  <      •     •* 

•<,>   \).,.,~   s 

..      ItiH 

8 

It)  Of  Leases  under  Powers,  [Chap.  Ill, 

person  in  beini:;  at  tlie  time  when  it  is  made;  for  generally  such  leases 
cannot  be  made  in  reversion  or  infuluro :  and  it  has  been  held,  that  if 
a  i)o\\  er  be  to  make  leases  to  one,  two,  or  three  persons,  the  donee  of 
the  power  cannot  make  a  lease  for'  the  lifa  of  the  first  son  of  J.  S. 
because  the  person  to  take  under  the  power  ought  to  be  in  esse  (r/). 

If  a  man  coverant  in  consideration  of  natural  ah'cction,  Mith  a  pow- 
er to  make  leases,  a  lease  to  a  stranger  is  void  (b). 

o.  Willi  respect  to  the  subjoct  on  which  the  power  is  to  operate. 

A  tenant  for  hTc,  having  power  to  grant  building  leases  for  siity-one 
vcars,  reserving  the  best  improvement  ground  rent,  granted  a  lease  for 
that  term,  which  was  not  expressed  to  be  a  building  lease,  but  which 
contained  a  covenant  by  the  lessee  to  keep  in  repair  the  premises 
demised  (old  houses)  or  such  other  "house  as  should  be  built  during 
the  term  ;"  held  that  this  was  not  a  building  lease  within  the  power: 
such  a  lease  being  granted  by  tenant  for  life,  who  had  a  bare  naked 
power  ^vithout  any  legal  interest,  is  void,  and  consequently  not  capable 
of  being  confu-mcd  by  the  remainder-man  accepting  rent  (c). 

If  a  leasing  power  be  restrained  to  be  exercised  only  over  heredita- 
ments vstiatli/  Icltcn,  lauds  twice  Ictten  are  included  within  that  des- 
cription (f')-  ^ 

IJut  lands  that  have  been  but  once  letten,  are  not   within  such  a 

power  (r). 

So,  if  lands  had  been  leased  by  virtue  of  a  contract,  from  year  to 
vear  for  tiiree  years,  this  cannot  be  said  to  be  usually  letten,  because 
this  is  but  one  lease,  though  renewable  every  year. 

Any  kind  of  demise  is  sufficient  to  support  such  pov/er,  there  being 
no  necessity  tliat  it  should  have  been  demised  by  indenture  ;  a  demise 
at  will, or  by  copy,  is  sufficient  to  make  land  to  be  accounted  usually 
demiscable  (/). 

But  lands  not  demised  for  the  space  of  twenty  years  before  the  exe. 
cution  of  a  power  to  demise,  at  the  rent  then  usually  reserved  and  paid, 
cannot  be  leased  under  such  power  (5-). 

Thus  (/i)  where  there  w as  a  tenant  for  life,  with  power  to  make 
leases  of  all  or  any  of  the  lands  in  an  indenture  of  settlement,  particu- 
larly mentioned,  which  at  any  time  theretofore  had  been  usually 
Ictten  or  demised,  for,  and  during  the  term  of  twenty-one  years  or 
imder,  in  possession  and  not  in  reversion,  reserving  the  rent  thereupon, 
then  yielded  or  paid,  or  more.  Tenant  for  life  made  a  lease  of  part  of 
the  premises  mentioned  hi  the  settlement,  which  had  been  let  at  100^. 
per  ana.  for  twcnly-onc  years;  but  which  term  of  twenty-one  3'earshad 
expired,  and  the  premises  had  not  been  kt  for  the  space  of  twenty 

{'i)  T.  Hay.  103.  (6)  Cro.  .lac.  Kfl.  (r)  Willes,-169. 

',</;  1  ?ot\\.  A.!tr.  2«1.  (c)  IbiJ.   13.  if)  Po\vell  on  I'ow.  392.    ?,  Cro.  Jac  79. 

,'?)  Powell  ou  Tov.  33i  (*;  Viu^'h.  31.    Sir  -T.  Jones.  27.  S.  C. 


Sect.  VII.J  Of  Leasis  muhr  Poncrs.  47 

years  before  the  demi-c,  iirulcr  Ihc  power  which  was  the  snhjccl  of 
dispute.  It  was  hcUl,  that  w  h;it  was  not  farmed  at  the  time  of  the  pro. 
viso  made,  nor  twenty  years  lirfore,  toul<l  not  he  said  to  bv  at  any  time 
before  commonly  farmed  ;  for  those  twenty  years  were  a  tlm'j  before  in 
^vhich  it  was  not  farmed.  Besides,  the  proviso  was,  that  leases  miijlit 
be  made  lor  twenty-one  years  of  any  lands  in  tl>e  deed,  reserving  tlic 
rents  then  upon  reserved  at  the  time  of  the  cUed  made,  wiiicli  nccch-. 
sarily  implied,  that  the  land  deniiseahle  by  that  proviso  must  be  land 
which  thtn  n\:is  under  rent  ;  lor  if  no  rent  then  was,  tlu:  rent  tlieu 
thereupon  reserved  eoiiKI  nut  Ijc  reserveil.  Ibil  the  premises  in  que.-'- 
tiiMi  had  then  no  rent  upon  them,  for  they  were  not  let  of  twenty  years 
before,  nor  then,  and  therefore  were  not  demiscable  by  tliat  proviso. 
The  w ords  "  or  more,"  could  not  at  all  heli)  the  lessee  ;  for  the  words 
**  more"  or  "  less,"  were  words  of  relation  ;  the  one  of  aildition  to 
what  was  before,  the  other  of  diminution  :  for  "  more"  or  "  less," 
must  relate  to  something  positive  before,  ami  eouUi  never  be  a  relation 
to  nothing. 

A  covenant  to  stand  seised,  as  it  is  a  lease  if  made  by  the  owner,  so 
also  is  it  an  evidence  of  the  usual  manner  of  demising  (r/). 

It  seems  now  to  be  settled,  that  the  question,  whether  under  a 
power  to  lease  lands,  and  other  hereditaments,  provided  that  sueli  rent 
or  more  be  reserved  upon  every  lease  as  hath  been  reserved,  or  paid  for 
it  within  a  given  time,  previous  to  the  creation  of  the  power — lands 
nf>t  before  in  lease  may  be  demised,  is  a  question  of  con'-t ruction  on 
the  i:itention  of  Die  author  of  the  power,  to  be  collected  from  the  in- 
jnslrumcnt  creating  the  pow  er,  or  the  circumstances  of  the  estate  {/>). 

Thus,  where  a  power  was  to  lease  a  manor,  except  tiie  demesne  land?, 
tJiough  copyholds,  being  within  that  description,  could  not  be  demised 
under  such  power,  yet  the  rents  and  services  of  the  manor  might  (r) ; 
for  it  appeared  to  be  the  intent  of  the  settlement,  that  part  of  the 
manor  should  be  demiseable,  and  notwithstanding  a  qualification 
annexed  to  the  power  which  said  that  the  ancient  rent  should  be  reserv- 
ed, and  no  reservation  of  rent  could  be  upon  a  lease  of  rents  and  servi- 
ces, out  of  which  no  rent  issues;  yet  the  rents  and  services  might  be 
demised  witliin  the  power,  for  it  appeared,  that  part  of  the  manor  wa*; 
intended  to  be  comprised  within  the  power,  but  that  the  demesne 
lands  were  not  to  be  comprised  ;  then  the  rents  and  services  unist  be, 
for  the  wliolc  of  the  manor  consists  in  demesnes,  rents,  and  services ; 
and  if  a  man  hath  a  power  reserved  to  liim  of  making  leases  of  two 
things,  and  a  qualification  is  annexed  to  the  power,  which  cannot  ex- 
tend to  one  of  these  things,  he  may  make  a  lease  of  that  thing  w  ithonf 
any  regartl  to  the  qualification. 

10^  OBuiT.  luO.  ['■;  rowell  on  Pow.  105     :  RtfU    Abr   283,  IS.    n  S<'\i   55" 

)  5  Mod  ::i5,  3T«     1  Cora    R.  37,  kc. 


18  Of  Leases  under  Powers.  [Cliap.  III. 

Accordingly,  where  there  is  a  power  to  make  a  lease  of  a  manor,  and 
ever\'  part  lliercof,  so  that  such  rent  l)c  reserved  upon  every  lease  as  was 
paid  tor  two  years  bcfiue,  and  it  happens  tliat  some  part  of  the  land 
was  not  leased  at  any  rent  within  two  years  before  ;  a  man  may  make 
a  lease  of  such  land,  reserving  what  rent  he  pleases,  for  the  intent  ap- 
pears to  be,  that  he  might  make  leases  of  the  Avhole  manor  («). 

So,  also,  where  a  man  had  power  to  make  leases  of  a  rectory,,  tithes, 
and  other  lands,  reserving  tiie  ancient  rent,  it  was  held,  that  he  might 
make  leases  of  titiics,  although  no  rent  can  issue  out  of  tithes ;  but  he 
might  demise  them  without  any  rent  if  it  pleased  him,  for  it  appeared 
that  tithes  were  within  the  power  (/;). 

So,  under  a  power  to  lease  ail  manors,  messuages,  lands,  &c.  "  so 
as  there  be  reserved  as  much  rent  as  is  now  paid  for  the  same,"  such 
parts  of  the  estate  enumerated  in  the  power  as  have  never  been  demised, 
may  be  let  (r). 

But  under  a  power  in  a  fauiily-settlement  to  make  leases  of  all  or  any 
part  of  the  premises,  reserving  the  ancient  rent,  lands  always  occupied 
A\ith  the  family  scat  cannot  be  demised  ;  for  in  such  case,  the  qualifi- 
cation annexed  to  the  power,  *'  that  the  ancient  rent  must  be  reserved," 
manifestly  excluded  the  mansion-house,  and  lands  about  it  never  let  : 
the  nature  of  the  thing  in  such  case,  speaks  the  intent  (^d). 

So,  under  the  settlement  of  an  estate,  with  a  power  to  the  tenant  in 
possession,  to  let  all  or  any  part  of  the  premises,  so  as  the  usual  cove- 
nants be  reserved^  a  lease  oi  tithes,  \Ahich  had  never  been  let  before,  Avas 
held  void. — In  all  these  cases,  the  intention  of  the  parties  is  to  govern 
the  court  in  construing  the  power  (^). 

Every  power,  in  the  construction  of  it,  is  to  be  taken  with  such  a  re- 
striction, that  the  estate  itself,  which  is  subjected  to  the  power,  shall  not 
be  destroyed  by  the  exercise  of  it.  Therefore,  in  the  case  of  Winter 
and  Lovedai/,  Rokeby,  J.  held  that,  had  the  express  words  used  in  that 
ccise,  "  so  as  it  be  not  of  the  demesne  lands"  been  left  out,  yet  there 
would  have  been  a  restraint  by  implication  from  making  leases  of  cus- 
tomary land  held  of  the  manor;  for  if  the  cnstomary  land  nught  be  de- 
mised, the  manor  would  be  destroyed,  which  it  must  be  presumed,  was 
^i.)t  the  intent  of  the  parties  (/). 

One  who  has  a  pow  er  to  grant  a  concurrent  lease  w  ithin  seven  years 
of  the  expiration  of  the  old,  may  grant  a  lease  at  any  time  on  the  sur- 
lender  of  the  old  one  (i,'-). 

4.  With  respect  to  the  quality  and  quantity  of  interest  to  be 
grafted. 

A  lease  for  ninety-nine  years  of  a  charity  estate,  (a  farm)  as  a  hus. 

[c)  5  >Tod.  215,378.     ]  Com.  R.  37, fee.  (6;  Ihid.  fa  1  Vent.  2'.U,  he.  cited. 

'V  O.ut.  .V-V  ,  (d)  8  iMod.  249.    Fort.  332. 

fO  4  T.  R.  MS.  (/)  Pow'eil  on  Poif.  407.  '  A'ide  ante.    5 Mod.  245,  ^7!!,  ?. ■•. 

ig .  Com.  Di|,.  tit.  Estates,  (0.  iq.) 


Sect.  VI I.J  Of  Leases  under  Ponns.  49 

!):ui(lry  lease,  cannot  stand  without  proof  of  a  consideration,  eliewinjj 
that  it  is  fail"  and  reason  ihic,  and  for  tlr^  hcnofit  u[  tlio  charity.  Under 
the  circumstances,  lonq;  posses-^ion  permitted,  and  the  defendant  h'-inij 
tiic  personal  rcj)resfntativc,  such  a  lease  was  set  aside  tW/Zjoi/^  roAfi-,and 
witiiout  impo^insj^  an  additionU  rent  previons  to  the  hlH,  but  future 
cases  will  not  l>c  so  treated  ((/). 

Upon  a  uicneral  po  ver  to  make  icasr^,  without  '■in  in:;  \\vn*\  llic  law 
adjutP^es,  that  the  leases  ou);ht  to  he  leases  in  po-^  •.-^ioii ;  for  if  upon 
such  pow6ralcasc  nii.^ht  be  made  upon  a  lease,  the.  party  mlu,h»,  by 
luakini^  iniinite  leasts,  detain  those  in  remainder  out  of  possesrion  for 
ever,  whicli  W'mM  !>'•  cnnliirv  to  ili-'  inlcnl  of  liic  |»:irtits  and  iK-airi'-l 
reason  (b). 

So,  a  general  power  to  make  leasees  lor  one  and  twenty  yeans,  doe? 
not  enable  the  party  to  make  such  a  lease  in  reversion,  by  which  a 
widow  would  be  deprived  of  the  benefit  of  her  jointure,  to  secure 
which  the  land  was  settled  by  act  of  parliament :  for,  besides  that 
jointures  are  favotired  in  law,  tiic  statute  intended  not  to  give  him 
that  liljcrly ;  and,  it  I>eini,'  a  liberty  ami  power,  it  must  be  strictly  pur- 
sued (r). 

If  a  man  has  power  to  make  leases  in  possession  or  reversion,  if  he 
makes  a  lease  in  po~scssion  once,  he  sliall  never  after  make  a  lease  in 
reversion ;  for  he  has  an  election  to  do  the  one  or  the  other,  but  not 
J»oth  {(l). 

Devisee  for  life,  with  power  to  make  leases  for  twcnty-ouc  years, 
whereupon  the  old  accustomed  rent  shall  be  reserved,  make?  a  lease  far 
}  wenty-one  years  under  the  old  rent,  Sec.  and  a  year  before  the  expira- 
tion of  that  lease,  he  makes  a  lease  to  anotlier  for  twenty-one  years  to 
begin  presently ;  this  lease  seems  to  be  good  w  ithin  his  power  as  a  con- 
currcni  lease,  because  it  is  no  charge  upon  the  reversion,  nor  is  there 
any  more  than  twenty-one  years /«  fo/o  against  the  reversioner :  but 
this  power  would  not  w  arrant  tlie  making  of  leases  in  reversion,  for  then 
he  miTht  charge  the  inlieritancc  ad  iujinitum  (r-). 

i'.ut  notwithstanding,  where  one  having  power  to  make  leases  for 
twenty-one  years  in  possession,  made  a  lease  to  A.  lor  twenty-one  years 
in  trust  for  the  payment  of  de!)ts,  l)ut  the  lease  w;us  made  to  eomni'Mice 
from  a  time  to  come,  aiid  so  not  pursuant  to  the  power,  yet  being 
made  for  the  payment  of  debts,  it  was  supported  in  equity  (/). 

Under  a  power  to  lease  in  possession  for  one,  two,  or  three  livpfj,  r>r 
for  thirty  years,  or  any  other  number  of  years  det^rmin able  on  on^^, 
two,  or  three  lives;  or  in  reversion  for  one,  two,  or  three  lives,  or  for 

(n)  10  Vc».  S55.  (b)  I  Brownl    U(«.     I  Com.  R.  Jr  i 

(>')  Cn>.  Klir.   5.  • ."  i  .1   '<  «v    .    ;   7 

f' )  Powellou  Kow.  428.  Ra<*.  Abr.U*    •■  ..J   112. 

'/)  Bac.  Ahr.  li.i.'..  i!8.  <'f!H  C*.  )•). 


bO  Of  Leases  under  Foivers.  [Chap.  III. 

thirty  years,  or  any  other  number  of  years  determinable  on  one,  two, 
or  three  lives,  a  man  cannot  make  an  absolute  lease  in  possession  for 
tliirty  years ;  but  an  absolute  lease  in  reversion,  for  thirty  years,  he 
may  {a). 

Where  there  is  a  power  to  grant  leases  in  possession,  but  not  by  way 
of  reversion  or  future  interest,  a  lease  yjcr  verba  dcprccscnti,  is  not  con- 
trary to  the  po^\•cr,  although  the  estate  at  the  time  of  granting  the 
lease,  was  held  by  tenants  at  will,  or  from  year  to  year ;  if  at  the  time» 
they  received  directions  from  the  grantor  of  the  lease  to  pay  their  rent 
to  the  lessee  (/;). 

So,  (r)  one  under  a  power  in  a  marriage  settlement  to  lease  for 
luenty-onc  years  in  possession,  but  not  in  reversion,  grants  a  lease  to 
his  only  daughter  for  twenty-one  years,  "  to  commence/ro7«  the  day  of 
the  date  ;"  adjudged  a  good  lease. — It  was  held  that  the  word  "  from'* 
may  mean  either  inclusive  or  exclusive,  according  to  the  context  and 
subject  matter  ;  and  the  court  will  construe  it  so  as  to  effectuate  the 
deeds  of  parties,  and  not  to  destroy  them.  But  the  authority  of  this 
determination  has  been  nmch  questioned. 

Under  a  power  in  a  will  to  lease  in  possession,  and  not  in  reversion, 
a  lease  for  years,  executed  the  29tli  of  Slarch  to  the  then  tenant  in 
possession,  habendum  as  to  the  arable  from  the  13th  of  February  pre- 
ceding, and  as  to  the  i)asture  from  the  5th  of  April  then  next,  6!:c. 
under  a  yearly  rent,  payable  quarterly,  on  the  10th  of  July,  10th 
of  October,  10th  of  January,  and  10th  of  April,  is  void  for  the 
^vhoIe,  though  such  lease  Avere  according  to  the  custom  of  the  country, 
and  the  same  had  been  before  granted  by  the  person  creating  the 
power  {d). 

Under  a  power  to  demise  for  twenty-one  years  in  possession,  and  not 
in  reversion,  a  lease  dated  in  fact  on  the  ITth  of  February,  1802,  ha- 
bendum  from  the  25th  of  March  next  ensuing  the  date  thereof  is  good, 
if  not  executed  and  delivered  till  after  the  25th  of  IMarch,  for  it  then 
takes  eflect  as  a  lease  in  possession  with  reference  back  to  the  date 
actually  expressed  (r). 

One  had  pow  er  in  effect  to  make  leases  for  the  lives  of  J.  B.  and  C. 
and  he  makes  ti  lease  to  them  for  their  three  lives,  and  the  life  of  the 
longer  liver  of  them :  and  this  was  held  to  be  sufficient  within  the 
power,  because,  for  three  lives  generally,  and  for  three  lives,  and  the 
longer  liver  of  them,  is  all  one,  since  without  such  words  it  Avould 
have  gone  to  the  survivor.— So,  a  lease  to  one  for  three  lives,  or  to 
three  for  their  lives  is  all  one  (/  ). 

Where  a  man  makes  a  settlement  of  the  reversion  of  lands,  demised 

'       ■'     -   "  (b)  Dong.  5B5. 

Cc7  Cowp.   7I.J.     a  >.V,ls.    1C5.  (J)  2  East'.  R.  S7G. 

.'->  Ui  Kar;l.   C7  ./ ;  Bac.  Abr.  tit.  "Loruics."  3  Keb.  U. 


Sect.  VI I.]  Of  Leases  uiuUr  Poncrs.  51 

for  life  or  years,  to  the  use  of  one  for  life,  with  power  to  luuke  leases 
J5cncrally,he  may  iimke  a  lease  during  the  continuiuue  of  a  former  lease, 
to  eoninience  after  the  former ;  us  otherwise  his  powrr  would  he  in- 
ellecttial  («). 

So,  a  furlioii,  if  a  power  expressly  enable  one  to  make  Ica5cs  in  rever- 
sion, fuch  a  lease  will  of  course  be  i;ot)d  by  \irtuc  thereof  (/<), 

I'nder  a  power  to  make  leases  "  for  ninety-nine  years,  or  throe  Iivc5 
in  possession,  or  for  two   lives  in  posse&>ion,  and  one  in    reversion,  or 
for  one  life  in  possession,  and  two  in  reversion,"  the  party,  durinj;  the 
continnance  of  the  first    lease,  made  a  lease  for  life  to  V. ;  and  tlic  , 
(jnestion  was,  Whether  tlu- latter  lease,  being  made  whilst  the  lives  in  * 
the  former  lease  were   in   beint?,   was  authori-^ed  by    the  power?  Dy 
tuo  of  the  justices,  out  of  three,  it  was  held,    that  had  the  words,  «*  in 
possession,'^  and  the  words  of  the  power  been  generally  to  make  leases, 
the  case  liad  been  strong  in.  favour  of  tlie  lease,  the  settlement  being  of 
a  reversion  ;  but  the  power  being  expressly  to  make  leases  in  possession, 
the  lease  in  reversion  was  not  within  it ;  and  they  noticed  the  particular 
wording  of  the  power  to  make  leases,  namely,  "for  two  lives  in  pos- 
'  session,  and  one  in  reversion ;"  or  "one    in  possesoion,  and  two  in  re 
version  ;"  so  that  it  appeared,  that  the  scope  and  intent  was,  never  to 
have  an  estate  aI)ove  three  lives  in  being  atone  timc(r). 

The  nature  of  a  lease  in  reversion  is  this.  In  the  most  ample  sense, 
that  is  said  to  be  a  lease  in  reversion,  which  hath  its  commencement 
at  a  future  day,  and  then  it  is  opposed  to  a  lease  in  posscf^sion ;  for 
every  lease  that  is  not  a  lease  in  possession,  in  this  sense  is  said  to  be  a 
lease  in  reversion.  Where  mention  is  made  of  leases  in  reversion  of  a 
power,  this  shall  be  intended  of  leases  to  commence  after  the  end  of  a 
])resent  interest  in  being ;  which  is  the  second  notion  of  a  lease  in  revtr- 
>i')n.  But  as  a  lease  for  life  cannot  be  made  to  commence  at  a  future  day, 
XV  here  a  power  is  given  to  make  leases  for  one  or  two  lives  in  reversion 
and  to  make  leases  for  years,  the  very  same  expression  (lease  in  rcver- 
fcion)  will  have  a  diiferent  signification  in  the  same  conveyance  :  bein"^ 
applied  to  a  lease  for  life,  it  shall  be  intended  of  a  concurrent  lease,  or 
a  lease  of  the  reversion,  viz.  a  lease  of  that  land  which  is  at  the  same 
time  under  a  demise ;  and  then  it  is  not  to  commence  rftcr  the  end  of 
the  demise  ;  but  hath  a  present  commencement,  and  is  concurrent  w  ilh 
the  prior  demise  ;  bat  being  ajiplied  to  a  lease  for  years,  it  shall  be  in- 
tended of  a  lease  which  shall  take  its  eileet  after  the  expij-ation  or  deter- 
mination of  a  lease  in  being  (d). 

The  law  therefore,  which  is  founded  in  reason  and  common  sense, 
considers  "possessory"  and  "reversionary,"  according  to  the  natmal 
and  ordinary  import  of  those  terms,  (without  annexing  any  artificial 
idea  to  them,)  as  including  the  simple  ideas  of  time  present,  and  ihhv 

(n)  I  Com.  K.315.  (b)  8  Rep.  C9. 

C<-;  Powell  en  I'pw  4:?P     2Lev   !•;-  i>r.  -<,>  SMoO  2.«  :i-».     ifnm   ■ 


o2  Of  Lcaacs  mider  Poivcrs.  |  Chap.  III. 

to  come:  and  couscquenlly,  that  every  subsisting;  interest,  or  time  not 
present,  is  an  interest  or  time  to  come  («), 

The  circumtitance  of  a  second  lease  for  years  being  c;rantcd  to  the 
same  lessee  who  holds  under  a  former  lease,  to  coninunce  after  the 
expiration  of  such  former  lease,  does  not  operate  to  make  the  latter  a 
continuation  of  the  former  lease,  where  the  terms  are  granted  by  dif- 
ferent deeds ;  although  the  residue  of  tlie  time  to  come  after  the  former 
lease,  together  with  the  period  for  which  the  latter  lease  is  granted,  do 
not  in  Icngtli  of  time  exceed  the  limits  fixed  l)y  the  power  :  for  the  lat- 
ter will,  notwithstanding-,  be  considered  as  a  reversionary  lease,  as  much 
as  if  it  had  been  granted  to  a  reversionary  lessee  (b). 

But,  if  under  a  power  to  demise  for  fourteen  years,  a  lease  were 
made  of  lands,  ^-c.  habendum^  for  seven  years,  and  so  from  seven 
years  to  seven  years,  the  latter,  it  seems,  would  be  but  a  ijontinuance 
of  the  former  term,  and  an  addition  to  it,  and  not  a  remainder  or  fu- 
ture interest  (r). 

If  there  i)e  a  po\yer  to  make  leases  in  possession  expressly,  Avhich 
attaches  upon  an  estate,  part  of  which  is  in  possession,  and  other  part 
thereof  in  reversion,  at  the  creation  of  the  power:  the  donee  of  tlie 
power  may  immediately  make  leases  in  possession  of  the  estate  in 
reversion,  as  ^\  ell  as  of  that  in  possession :  for  in  such  case,  the  word 
"  possession,"  in  the  power,  refers  to  the  lease,  and  not  to  the  land  (^d). 
But  it  seems,  that  if  a  power  enable  any  one  to  make  leases  in  rever- 
sion, as  well  as  in  possession,  and  some  part  of  the  land  subject  to  the 
power  be  in  possession,  and  other  part  of  it  in  reversion, he  cannot 
make  a  lease  in  possession  and  another  lease  in  reversion  of  the  same 
land  ;  but  his  power  to  make  leases  in  reversion,  Aviil  be  confined  to 
such  land  as  was  not  then  in  possession:  and  note  the  distinction  be- 
tween these  two  cases  (r). 

If  a  power  be  created  to  enable  a  tenant  for  life,  to  make  leases  for 
one,  two,or  thrcee  lives,  or  for  any  term  or  number  of  years,  deter- 
minable upon  one,  two,  or  three  lives,  in  possession,  is-c.  of  such  part 
and  parts,  and  so  much  only  of  the  manors,  ore.  of  the  creator  of  the 
power,  as  are  then  demised  or  granted  for  any  such  time,  ^h-.  no  lands 
or  hereditaments  can  be  demised, under  such  a  power, but  what  are  at 
the  time  of  the  execution  of  the  power  imder  lease  for  one,  two,  or 
tiu'?e  concurrent  lives,  or  for  any  term  of  years,  determinable  upon 
one,  two,  or  three  concurrent  lives ;  for  the  meaning  of  such  restriction 
is,  that  the  candles  shall  be  all  burning  at  the  same  time  (/). 

A  power  tn  make  a  lease  fur  three  lives  was  held  not  to  be  well  exe- 
cuted in  law,  by  a  lep-se  for  ninety-nine  years,  determiualile  upon  three 
lives.     The  reason  seems  to  be,  that  the  estates  are  dilTerent,  one  being 

rn)  Poffpll  on  Porr.  4r,i.  (t)  5  T.  R.  SfiB.'  (c)  1  Lev.  4i.     3  T.   R.  462. 

\'l)  \\yi^^\\oii\\ijii.i'i'j     Cac  Aljr.  tit.  Leases,    tro.  .lac.  317. 

(' )  P'wi-ll  on  PoK».  427.     I  Com.  R.  :(^vir.t*  ',/)  Powell  on  Po^t.  541.    7T.  R.  713 


Sc(  t.  Vlf,]  Of  Lfdses  nndtr  Powers.  .0:j 

a  fr(c!i»)lv.l  uiul  the  oUicr  ii  chaltcl.  Such  uas  tlic  construction  in  U'liit- 
lock's  ciue,  («)  and  £iicli  seems  now  lo  be  the  settled  rule  of  law,  not- 
withstanding that  the  Judges,  in  3  Ktb.  TIG,  thout;htthe  construction 
too  nice,  iind  contrary  to  the  inttntof  the  parties,  and  tJioiu^h  determi- 
nations to  tlic  contrary  are  in  the  l)ooks  (A). 

An  estate  w;is   settled  on  several  tenants  for  life  in  succession  with 
reniainchrs  in  tail,  w  itii  power  to  every  tenant  for  life,  from  time  to 
time  liy  indenture  to  make  leases  for  any  term  or  numher  oi  years,  not 
exceeding  twenly-one  years  or  for  tJie  life  or  lives  of  any  one,  two,  or 
three  persons,  60  as  no  greater  estate  than  for  three  lives  heat  anyone 
time  in  heiiig  in  any  part  of  tiie  premise;*  and  so  as  the  ancient  yearly 
rent,  A-c.  he  reserved,  lield  lirst,  that  tlie  power  only  authojijied  either 
a  chattel  lease  not  exceedinij  twenty  one  years,  or  a  freehold  lease  not 
cxceedini^  three  lives,  and  that  a  lease  by  tenant  lor  iife  for  nuiety-ninc 
years  determinable  on  lives  as  it  might  exceed  t  w  enty-one  years  ivas  void 
at  law ,  antl  w  as  not  even  good />ro  tanto  for  the  tw  enty-one  years ;  but  tuc 
special  verdict  finding  that  tlie  tenant  in  tail  had  received  the  rent  re- 
served by  such  kase  accruing  after  the  death  of  the  tenant  for  life  who 
made  it,  and  who  had  not  given  any  notice  to  quit,  Held  secondly,  thut 
the  receipt  of  rent  was  evidence  of  a  tenancy  the  particular  descrii)lion 
«f  whicli  it  was  for  tlic  jury   to  decide  upon,  and  for  the  defect  of  the 
special  verdict  in  this  respect,  a  ventre  dc  novo  was  awarded  ;  but  the 
court  intimated  that  under  the  circumstances  of  the  case,  and  the  dispa- 
rity of  the  rent  reserved  being  1/.  2s. ,  while  the  rack  rent  value  was  60/. 
a  year  (though  one  of  the  lessees  had  been  presented  l)y  the  homa --e 
as  tenant  after  thedcathof  the  tenant  for  life,  and  admitted  by  fiie  lord's 
steward,  ami  the  4/.  2s.  reserved  was  more  than  the  ancient  rent),  a  jury 
wouklbes!rongly  advised,  todccideagainsta  tenancy  from  year  to  year(f). 
Powers  to  lease,  habendum  for  lives  or  years,  may  be  either  absolutely 
for  one,  two,  or  three  lives  ;  or  for  an  absolute  term  of  years,  as  for 
thirty  year*  :  or  qualified,  as  for  any  numl)er  of  years,  determinable 
upon  one,  two,  or  three  lives. 

A  man,  having  a  power  to  grant  leases,  may  do  less  tl\an  such  pow- 
er ena!>les  him  to  do  ;  or,  if  he  do  more,  it  shall  be  good  to  the  extent 
of  his  power. 

Thus,  where  the  city  of  Londoji  unrlcr  a  power  granted  by  act  of 
parliament  to  lease  for  one  and  one-and-twenty  years,  granted  a  lease 
for  onc-and-tuenty,  it  was  held  no  variance  upon  o//rr  of  thL>  indenture 
in  which  such  power  was  recited (i/^.W 

So,  if  a  man  hath  power  to  lease  for  ten  years,  and  he  Icaseth  for 
twenty  years,  tlie  h  ate  lor  twenty  years  shall  be  good  for  ten  vears  of 
the  twenty  in  equity  ;  and  so  it  hns  been  settled  several  times  {>). 
So,  wnere   tenant    for  life  had  power  to  let  leases  for  twenty-one 

ini  q  Rep.  70.   B      2  Str  990    S.   P.  (i,  8  Com    r.3.  TO      Btc.  Abr    Til.  "  U»  e, 

;*;  !0  Ea;t.  )%P  :t)  Bar    Air   tit.  "L^ts*!"  /••  )  rbn,    r«   •" 

•I 


54  Of  Leases  under  Poivera.  [Chap.  III. 

years  in  possession,  and  he  made  a  lease  for  twenty-six  years,  without 
referring  to  the  power;  it  was  held  that  the  first  lease  should  be  pre- 
Slimed  to  have  been  surrendered,  and  the  remahider-nian  should  be 
bound  for  twenty-one  years  of  the  new  lease  (a). 

If  a  man  pursues  all  the  requisites  within  his  power,  though  he  does 
it  by  more  deeds  than  arc  necessary,  it  will  be  good  (/;). 

A  power  may  be  executed  at  diiferent  times,  if  not  fully  executed  at 
first,  provided  that  the  party,  in  the  whole  execution,  does  not  trans- 
gress the  limits  of  the  power  (r). 

Therefore  if  a  woman,  seised  of  an  estate  for  life,  with  a  power 
to  lease  for  three  lives,  or  twenty-one  years,  marries,  and  then  she 
and  her  husband  join  in  making  the  lease,  and  the  husband  and 
wife  both  die  before  the  lease  is  expired  ;  here,  though  the  husband, 
in  riditof  his  wife,  and  she  in  her  own,  are  possessed  of  an  estate  for 
life  and  therefore  can  as  owners  make  a  lease,  and  there  appears  no 
intention  of  the  parties,  (imagining  perhaps  that  they  should  have  out- 
lived the  le&sc,)  that  tliis  lease  should  be  made  by  virtue  of  the  power ; 
yet  because  the  lease,  supposing  it  made  by  them  as  owners,  cannot 
have  the  eftcct  the  parties  intended,  for  some  it  would  have  (viz, 
it  would  be  a  good  lease  during  the  lives  of  the  husband  and  wife,)  yet 
becaufe  it  cannot  have  all,  it  shall  be  esteemed  to  be  made  by  virtue  of 
the  power  (d). 

If  the  deed  has  not  a  full  operation,  except  where  it  is  in  execution 
of  his  power,  it  will  notwithstanding  be  good;  as  if  tenant  for  life 
make  a  lease,  without  taking  notice  of  his  power,  it  shall  be  an  execu- 
tion of  his  power  to  make  leases ;  for  otherwise  the  lease  will  not  have 
an  ciiectual  continuance  (c). 

5.  With  respect  to  the  rent. 

There  are  tv;o  methods  of  leasing  in  common  use  in  this  kingdom ;  at 
the  best  rent,  and  upon  fines,  which  as  the  lives  or  leases  drop,  are  con- 
sidered among  the  annual  profits. 

The  latter  mode  is  not  very  common  in  England,  where  the  power  of 
leasing  usually  introduced  in  settlements  requires  the  best  rent  to  be 
reserved,  and  expressly  prohibits  the  taking  of  any  fine  or  premium  (/). 

Wiiere  a  lease  is  made  under  a  power  requiring  the  best  rent  to  be 
reserved,  the  question  whether  the  best  rent  has  been  reserved  must  be 
left  to  a  jury. — In^provcments  by  the  tenant  will  not  authorize  a  lease 
at  an  undervalue,  and  if  a  fine  be  taken  the  lease  cannot  be  supported, 
though  the  rent  be  ever  so  considerable.  The  surrender  of  an  existing 
lease,  and  tlie  grant  of  a  new  one  at  an  increased  rent  is  not  equivalent 
to  taking  a  fine  {fj). 

In  a  power  to  grant  building  leases,  tlie  terra  best  rent  must,  although 
not  so  expressed,  I)c  understood  to  mean  the  best  rent  which  can  be 

(a)  Ami..  740.  (6)  Com.  Dig.  Tit.  "  Poir,"  (C.3.) 

(cy  1  m.  ft.  IM.  J    loiwod.  36.  (t)  1  Vent  233. 


.Srrt.  All.  Of  Ijeases  uudcr  Poncrs.  55 

o])lainc(I  with  rrfcrcncc  to  the  ^ross  sum  to  Ijc  laid  out  by  llic,  tenant  in 
lniiUlinL;;s  or  iinjiiDxcnipnts  {((). 

A  lease  at  ■\-U.  a  yiar  granlcd  ujkUt  a  iiowcr,  direct  iiii^  the  lirst  rent 
to  be  reserved  cannot  be  impeached  merely  by  i^hoMin^'  that  Iho  ksix>i 
rejected  at  the  time  two  specihc  offers,  one  of  50/.  anil  anotlier  from  TjO/. 
to  CO/,  from  other  tenantt:,  tho'it:li  the  reKponsibility  <vf  sucii  olIi<r 
tenants  couM  not  be  disproved;  for  in  the  exercise  of  suc!i  a  power 
where  fairly  intended  and  no  fine  or  other  collateral  consideration  is  re- 
ceived or  injurious  i)artiality  plainly  manifested  by  the  h^;or,  all  olJicr 
requisites  of  a  good  tenant  arc  to  be  regarded,  as  uell  as  Uic  mere 
amount  of  the  rent  odered, unless  somethinq;  extravagantly  wrong  in  the 
l)ar^ain  ft)r  rent  f)e  shewn.  The  best  rent  nuans  the  bol  rack  rent  that 
can  reasonably  be  required  by  a  landlord,  takini;  all  tlic  requisites  of  a 
good  tenant  for  the  permanent  benefit  of  the  estate  into  the  account  {b). 
The  sufliciency  of  the  rent  must  be  governed  by-thc  consideration  on 
whom  the  onus  of  the  repair  is  thrown  (r). 

A  power  was  given  to  lease  for  twenty-ojie  years  reserving  the  best 
rent,  so  as  the  lease  should  not  contain  any  clause  w  hcitby  auUiority 
should  be  givrn  to  the  lessee  to  commit  waste,  or  whcrel»y  he  should  be 
exempted  from  punishment  for  committing  m  aste,  and  so  as  such  lease 
fhould  contain,  such  other  conditions,  covenants  and  restrictions,  as 
were  generally  inserted  according  to  tiic  usasjc  of  countries  where  the 
premises  were  situate.  It  was  held  that  a  lease  was  good  ;  though  the 
lessor  thereby  t(X)];  on  himself  the  repairs  of  the  mansion-house  (except- 
ing the  glass  windows),  and  covenanted  that  if  he  did  not  repair  it 
within  three  months  after  notice,  the  tenant  might  do  so,  and  deduct 
the  expense  out  of  the  nut  reserved  ;  and  though  the  lessor  covenanted 
in  consideration  of  a  large  sum  to  be  lajcl  out  by  the  lessee  in  the  repair 
of  the  premises  in  the  first  instance,  ro  renew  during  his  tiie  1(  ssor's 
life,  at  the  request  of  the  lessee,  his  executors,  S^c.  on  the  same  terms  ^ 
because  this  covenant  only  bound  the  lessor  himself,  and  if  the  bcbt 
rent  were  not  reserved  upon  such  renewal,  the  lease  would  be  void 
against  the  remainder-man  (if). 

Therefore,  if  a  power  be  to  make  leases,  rendering  the  ancient  rent, 
a  lease  which  does  not  reserve  it  will  be  void :  as  if  the  party  leases  two 
acres  with  other  land,  and  reserves  the  rent  of  the  two  acres  for  the 
whole  (r).  By  a  reservation  in  a  fiowcr  to  lease  of  the  ancient  and  ac- 
customeil  rent,  is  to  be  understood  that  which  was  reserved  at  the  cre- 
ation of  the  power,  if  a  lease  were //<r«  in  Ijcing;  or  tljat  whieli  was 
last  before  reserved,  if  no  lease  were  then  in  being;  for  he  who  created 
such  a  power  intended  no  more  than  that  the  lessor  and  lessee  should 
not  be  able  to  put  the  estate  in  a  worse  condition  than  it  was  in  whtu 
the  po\ver  was  created,  but  sliould  keep  it  in  tlie  same  plight  ami  ccn- 

n)  Sugd.  0/1  Powers-,  5'3  (6)   10  Ea«t,  2n.  ('r>  12  E«t,  30i 

'<<)  Ibid  3C0  ''■,  Com.  Dij.  til.  "  Poir."  (C.  S  ) 


56  Of  Leases  under  Porters.  [Chap.  III. 

dltion  at  least,  as  it  was  in  when  so  settled.  This  was  the  opinion  of 
Lord  Holt,  wlio  also  observed,  that  without  a  certainty,  the  power  could 
not  be  executed  even  by  reserving,-  a  sum  in  particular  ;  and,  therefore, 
he  gave  it  as  his  opinion,  that  upon  any  settlement  where  a  power  was 
reserved  to  the  tenant  for  life  to  make  leases  of  the  lands  in  that  settle- 
ment, (whicli  were  anciently  and  acciistomably  demised,  and  whereof 
lines  had  been  taken,)  at  the  ancient,  usual,  and  acciistomable  rent,  for 
three  lives,  for  one  and  twenty  years,  or  any  other  number  of  years 
determinable  on  three  lives,  that  rent  which  was  then  or  last  before  re- 
served upon  a  lease  in  being-  of  the  same  lands,  or  on  a  lease  which  ex- 
pired last  before  the  time  of  the  settlement  made,  must  be  the  sum  and 
no  other  (a). 

But  Lord  Conper,  in  the  same  case,  doubted  as  to  this  point,  and 
sp.ggested,  that  suppose  lands  were  leased  once  at  a  greater  and  twice 
at  a  lesser  rent,  he  took  the  rent  of  the  former  lease  to  be  the  ancient 
rent:  the  last  lease  might  be  made  by  him  that  had  the  fee,  who  was 
not  bound  to  reserve  the  ancient  rent,  but  might  let  it  for  nothing  if 
he  pleased. — So,  his  lordship  thought  that  this  rule  would  likewise  not 
apply  to  lands  anciently  demised,  whereof  fines  liad  been  taken ;  for 
there  the  rents  were  more  or  less,  as  the  fines  were  higher  or  lower  (/^). 
But  it  seems  that,  if  the  custom  of  the  country  where  the  lands  lie 
be  to  lease  partly  on  a  rent,  and  to  take  a  fine  for  the  remaining  value, 
then  Lord  HoWs  mode  of  ascertaining  the  ancient  rent  is  most  rea- 
sonable.— So,  if  such  power  be  to  lease,  reserving  so  much  yearly  rent, 
or  more,  as  hath  "  been  most  accustomably"  yielded  or  paid  within 
iw  eiity  years  next  before  such  lease  thereof  made,  the  reserved  within 
the  twenty  years  must  be  the  measure  of  the  reservation  upon  leases 
made  by  virtue  of  such  power,  although  a  greater  rent  hath  been  re- 
served before  the  twenty  years  (c). 

But  if  several  rents  have  been  reserved  within  the  twenty  years  re- 
ferred to,  Lord  RoWs  rule  seems  in  that  case  the  most  proper  to  go  by  : 
unless  the  leases  on  which  the  rent  has  ])een  reserved  \\  ithin  the  twenty 
years  have  ])een  sometimes  with  fines  and  sometimes  without,  in  which 
case  Lord  Conpcr''sTv\\c  seems  best  (c/). 

Tenant  for  life  under  a  power  in  a  settlement  to  leage  at  the  "  usual 
rent"  may  demise  upon  reserving  the  usual  fines  and  rent,  where  the 
usual  profit  had  heretofore  been  made  by  fines ;  for  if  the  trustees  under 
the  settlement  were  obliged  to  let  the  lands  at  a  rack-rent,  it  might  l^e 
quite  inconsistent  with  the  nature  of  these  estates  {e). 

If  a  lease  be  made  under  a  power  to  demise,  reserving  the  true  and 
ancient  rent,  and  the  rent  reserved  be  not  conformable  to  that  both  in 
quantity  and  quality,  and  manner  of  reservation  also,  the  lease  (it  is 
said)  will  be  void  (/ ). 

(p]  ?.  Ch    Rep  r.fi.     ?  Vp'rn.  631,  512.     Bar.  Abr.  tii    '•  Leisr-s  "  (h)  Ibi'il 

'c)  rovveII'';i  Poivers,  55J.  .rf  •Ihi'l,  '<-~i  n  Rnrr    \\\t\ 


JSett.  VI  I.J  Of  Leases  under  Powers.  TiT 

Thus  where  rent  ancicnlly  payable  in  gold,  uas  in  ancu'  Ica.«c  un- 
der H  pouer  so  restrieted  made  payable  in  silver,  such  lease  would  not 
hind:  for  the  variation  may  l)e  prejudicial  to  the  remainder-man. 
Hut  a  reservalio!!  of  "  eii^lit  hu.shels"  where  "  a  fjuartcr  of  corn"  uas 
mentioned  in  tlit  pnuer,  will  he  j^ood  :  for  the  variation  is  only  in 
words  (f/). 

If  a  ten;uit  in  tail  he  of  two  farms  binder  a  sctllcmont,  one  of  whicli 
has  heen  always  let  at  :^/,  rent,  and  the  other  for  10/.  rent,  he  may 
not,  (it  Is  said)  hy  virtue  of  such  power,  make  a  lease  of  both  for  twen- 
ty-one years,  rendering  an  entire  rent  of  ;iO/.  ('»). 

So,  two  farms, usually  let  to  separate  tenants,  cannot  ])e  let  by  one 
lease  to  one  tenant,  by  32  //.  8.  c.  28.  though  a  greater  rent  be  re- 
served (r). 

For  the  intent  of  sucli  reservation  is,  not  only  thnl  the  old  sum  of 
money  shall  be  reserved,  but  that  it  shall  he  issuing  out  of  tiie  old 
land  {(I). 

'  Improving  the  estate  will  not  be  considered  such  an  alteration  as 
varies  the  rent,  by  making  it  to  issue  out  of  other  hereditaments  thau 
those  contained  in  the  power  :  as  where  the  tenant  entered  and  built  a 
new  house  upon  tl)e  land,  aiid  then  made  a  lease  for  twenty-one  years, 
reserving  only  the  ancient  rent,  <\'y.  the  court  would  not  sufTcr  an  oh- 
jection  to  it  to  be  argued  (c). 

If  a  power  to  lease  be,  provided  that  two  pnrts  in  three  of  the  im- 
proved value  be  reserved  as  a  rent,  the  reservation  may  be  made  in  tlie 
terms  of  the  power:  and  the  constant  payment  of  sucli  a  sum  as 
amounted  to  that  at  the  time  of  making  such  a  lease,  will  be  good, 
whether  the  tenements  that  arc  the  subjects  of  it  rise  or  fall  in  value  (/). 

But  in  general,  it  seems  necessary,  thattlie  sum  intended  to  be  re- 
served under  such  provisoes  in  fam.ily  settlements  and  conveyances, 
should  be  sprc/firall^  staled  in  the  lease  :  for  otherw  ise  the  remainder- 
man may  be  put  to  infinite  trouble  and  expense.  It  hath,  therefore, 
been  held,  that  the  reservation,  may  not  be  made  in  the  same  or  as 
general  terms  as  the  power  itself  is,  as,  by  simply  transcril)ing  the 
clajise  respecting  t!ie  reservation  of  the  ancient  and  accustomable  rent, 
(^T.  in  the  instrument  creating  the  power  to  lease,  into  the  lease,  leaving 
the  necessity  of  averring  and  prt5ving  Avhat  was  tlic  ancient  and  ac- 
customable rent  to  the  tenant  for  life  or  remainder-man  (e).  Tenant 
for  life  with  power  to  make  leases  of  all  land?  anciently  demised,  re- 
serving the  ancient  rents  or  more,  and  of  other  lands  reserving  the  best 
nnd  mo<;t  improved  rents  that  could  be  got,  m:i\"es  a  lea?/;  of  part  of  the 
premises  usually  demised  reserving  "the  old  accustomed  rents;''  and 
a  lease  of  other  part  not   usually  demised,   rt\serving  "such  suin  of 

(/i^  Rcool.  in  5  r.ep.  X  C.     Mounjiy"   1  Ibi.l.  rr\^.- 

(d)  PoweHonPoweR,55j.    (t),  I  Lmd.  u;.  t/)  Powell  on  I  lii.  1!  i?. 

i'  P<»we)i  utantf     "Mm  Pnr  e»  2iH     Ollti  »;'i   U.  <5  S.  C     I-  . 


oH  Of  Leases  under  Powers,  [Chap.  III. 

money  as  should  amount  to  the  best  and  most  improved  yearly  rent :" 
both  these  leases  held  to  be  void  as  against  the  remainder-man  ;  the 
first  not  being  warranted  by  tl\e  power,  and  the  other  for  the  uncer- 
tahity  oi"  it  {ji). 

So,  where  tenant  for  life  had  made  a  lease  of  the  lands  not  usually 
ktten,  reserving  therefore  the  best  and  most  approved  rents  for  the 
same, according  to  the  words  of  the  po\\er ;  this  was  held  to  be  so  ut- 
terly uncertain,  that  nothing  was  oiiered  to  support  it  (^). 

But  where  such  rent  is  ascertainable,  it  is  otherwise;  for  id  certum 
est  quod  certum  reddl  potest. — Therefore,  where  a  power  was,  by  a  set- 
tlement to  make  leases  of  land  anciently  demised,  reserving  at  least  i2d. 
for  every  Cheshire  acre;  and  a  lease  was  made  of  all  the  lands  an- 
ciently demised,  reserving  all  the  rent  intended  to  be  reserved  :  though 
these  words  were  very  general  and  uncertain  in  themselves,  the  reser- 
vation was  held  good,  because  it  might  easily  be  ascertained  by  the  re- 
ference of  the  12d.  at  least  for  every  Cheshire  acre,  for  it  is  known  what 
a  Cheshire  acre  is ;  and  that  may  by  admeasurement  be  at  all  times  as- 
certained, and  depends  not  upon  uncertain  evidence  (c). 

Ifthe  lease  be  of  lauds  sul)jec ted  to  a  power,  together  with  other 
lands  not  so  sulyected,  and  there  be  equivocal  words,  under  which  the 
reservation  of  the  rent  may  be  referred  to,  namely,  whether  to  the  pre- 
mises on  which  the  poAver  attaches,  or  otherwise,  and  the  lease  cannot 
take  eiTcct  unless  the  rent  be  to  issue  out  of  those  premises:  then  the 
better  o})inion  seems  to  be,  that  the  reservation  shall  be  taken  as  refei'- 
able  only  to  the  premises  subjected  to  the  poM  er,  and  that  by  that 
means  the  lease  may  be  made  good  (d). 

It  seems  that  several  leases  may  be  made  in  the  same  deed,  under 
Eiich  a  power,  if  the  reservations  be  several  and  certahi. — Thus  where  a 
lense  for  a  term  of  years  was  made  of  the  manors  of  y/.  B.  and  C.  by 
indenture,  rendering  annually  to  the  lessor,  his  heirs  and  assigns,  for 
A.  10/.  for  B.  61.  for  C  4/.  at  the  feast,  (frc.  and  payable  at  one  place 
out  of  tlie  manor,  with  a  condition  to  re-enter  into  the  said  three 
manors  for  noii-payment  of  the  said  rents,  or  any  of  1  hem,  or  any  part 
or  parr.el  of  them  within  a  month  after  the  said  feast,  &r.  The  lessor 
entered  upon  the  lessee  into  all  the  three  manors,  for  rent  of  one  of  the 
manors  in  arrcar;  and  one  point  was,  whether  the  several  reservations 
of  the  rent,  were  several  tenures,  deniises,  reversions,  and  rents,  and  to 
be  avowed  for  severally  ?  Three  of  the  justices  held  that  they  Mere: 
but  Di/er  J.  held  not,  because  they  were  not  divers  leases,  but  one 
1- a«^  tfi  one  p;rson,  and  one  limitation  of  an  estate,  and  consequently 
that  therp  was  but  one  reversion  to  which  the  rent  Avas  incident;  and 
t'lat  therefore,  the  several  reservations  of  several  rents  could  not  change 

(a*  Ci  Bro.  Cac.  in  Pari   .r)  (b)  Powell  ut  ante. 

.- ,  ii»j.  Abr.  lit.  "  Leafcfcs."    3Ch.  a.  Tl,?;.  [ttj  I'oweil  on  Powers,  5G7.     1  Vest: 

3.) J,  33J.     I    Vent.  22'i.  ante. 


^tct.  \  il.j  •  of  Leasts  uiuhr  V oners.  59 

the  nature  of  the  reversion  which  was  the  princip;iJ,  tlie  rent  being  on- 
ly accessury.     Idro^/uarc  («). 

If  tlurc  Ijc  a  (lillVrcnce  as  to  the  time  of  the  payment  of  the  rent,  so 
that  it  he  not  i);iyalile  at  the  same  periods  as  anciently,  that  w  ill  vitiate 
a  lease,  under  a  jKnier  rcstriclul  to  ha  made,  rendering  tjje  tru»;  and 
ancient  rent  (A)-  Thus  a  reservation  of  the  rent  at  two  days,  where  the 
rent  was  funucrly  reserved  and  payalyle  at  four  days,  ^sas  held,  in 
MouiUJut/s  case  (r),  to  make  the  grunt  and  render  void  ;  because  it  wa« 
till  iiorumc/Uuiiifio  the  injury  of  the  Jicirs  in  tail,  which  was  restrained 
by  the  statute  that  created  the  power  :  for  it  was  more  b(H(ficial  for 
therato  have  it  paid  at  lour  feasts  than. two;  and  all  beneficial  quali- 
fies of  the  rent  ought  to  be  reserved  and  observi-d  {d). 

In  this  respect,  leases  under  |)owcrs  in  sctllements  difTt-r  from  rcclc- 
siastical  leases  umlcr  13  £liz.  (ofwliich  herealter  .)  fur  in  theni  a  re- 
icrvation  at  two  days  when  the  rent  was  paya!)lf  formerly  at  lour  days 
does  not  vitiate  the  lease,  l)ecausc  the  statute  does  not  avoid  such  lease 
if  the  accustomed  yearly  rent  or  more  be  reserved  (r). 

The  whole  rent  must  be  payable  annually  durinp;  the  whole  term; 
for  the  desii^nof  the  donor  is  not  unswrred,  unless  a  continual  revenue 
be  yearly  payable  by  compulsion  of  law,  and  not  in  expectancy,  or  m  . 
futuro  (/). 

But,  under  a  power  to  nia!:o  leases,  rescrvln.c^  tlic  ancient  yearly  rent 
annually,  yet  if  it  were  reserved  upon  a  day  before  the  year  was  up,  as 
if  the  year  ended  at  C7»m/?;M5,  and  it  was  reserved  at  Michadmas,  it 
would  be  well  pursuant  to  the  power  (§). 

Heriots  and  the  like  need  not  be  rej-ervcd  in  a  lean!  in;i<lc  mulera 
power,  restrained  to  be  rendering  the  true  and  ancient  rent  ;  for  they 
arc  casual  and  accidental  services,  and  therefore  fall  not  within  the 
meaning  of  such  restriction  (/»). 

Although  in  common  law  conveyances,  no  rent  can  be  reserved  but 
to  the  lessor,  donor,  or  feollbr,  and  his  heirs,  who  arc  privies  in  blood, 
and  not  to  any  w  ho  is  privy  in  estate,  as,  to  him  in  reversion,  remain- 
der, A'r.  yet  in  the  case  of  powers  the  reservation  by  tenant  for  life  is 
good,  and  shall  enure  as  rent  to  the  remainder-man,  and  he  may  dis- 
train for  it  (/)  ;  and  this,  though  it  be  reserved  to  such  tenant  for  life, 
and  his  heirs ;  for  powers  take  cfiecl  through  the  medium  of  the  statute 
of  Use?,  which  executes  the  possession  according  to  the  limitation  of 
the  use,  and  such  lease,  when  made,  takes  eilect  out  of  the  uses  of  the 
settlement  by  whicli  it  is  created  (A). 

Thus,  where  a  question  was,  whether  the  words  of  the  reservatiou 
did  not  make  that  which  was  called  a  rent,  to  be  only  a  sum  in  gross, 

f  «>  Powf  11  on  Pwrcrn.  509.  D}er,  3«e  6.  PI.  75.      Vic'e  Pc.%  .  ■ 
(fc;  Pom.-ll  on  Power*,  571.  (e)  Ante  J,  ;•:?  H   h  c.  38. 

frl  Cio.  Jac.  76.  (/)  1  Burr.  121  . -^  2  LU.  K«y  8196 

••'  C'.y    .lac.  70      !  Com   K.  312.  ti)  Pouc,  ^..  I  u.t.  •.  573  (t)8Rep.Ta. 


GO  Of  Leases  under  Powers.  [Chap.  III. 

and  not  rent,  and  to  turn  the  reservation  of  rent  into  a  condition  ?  the 
Court  held  tliat  tlie  land  wasdistrainable  for  it  as  for  rent,  and  that  it 
was  not  a  payment  upon  condition  (a)  ;  one  reason  for  \vhich  was,  that 
it  was  not  tlie  intent  of  those  who  were  parties  to  the  indenture  to  make 
it  a  condition,  but  rather  to  make  a  limitation  of  the  rent  for  the  uses 
mentioned  ;  and  that  it  could  not  ensue  the  nature  of  a  condition,  for 
it  could  not  be  taken  as  a  condition  at  common  law,  because  those  ia 
the  remainder  were  mere  strangers  to  the  condition  ;  and  a  condition 
united  to  the  use  of  the  term  it  could  not  be;  for,  if  it  were  so,  he  in 
remainder  bcin^  a  stranger,  could  not  in  law  take  advantage  of  it :  but 
if  it  were  rent,  he  immediately  in  remainder  might  distrain  for  the 
rent,  when  it  incurred  due,  by  reason  of  the  statute  27  11.  8.  c.  10.  of 
Uses,  by  which  it  was  enacted,  "  that  the  intent  of  the  parties  should 
be  observed."  Therefore,if  the  use  Mere  so  limited  thata  stranger  should 
have  the  rent,  ^^c.  he  should  have  it,  and  might  distrain  for  it  {b). 
G.  Vv'ith  respect  to  the  form  of  the  lease. 

In  the  usual  power  of  leasing,  besides  the  reservation  of  the  best 
rent,  it  is  commonly  required  that  the  lessee  covenant  for  payment  of 
the  rent,  that  a  clause  of  re-entry  in  default  of  payment  be  inserted, 
thattiie  lessee  be  not  made  dispunishable  for  waste,  and  that  he  exe- 
cute a  counterpart ;  and  if  these  conditions  are  required,  and  any  of 
them  be  not  complied  with,  the  lease  will  be  void.  It  should  seem  in- 
deed that  the  circumstances  usually  made  requisite  in  powers  of  leas- 
ing, must  be  considered  as  implied,  although  not  expressly  required  (c). 
Under  a  power  to  lease  reserving  a  condition  of  re-entry  for  non-pay- 
ment of  rent  for  tuenty-one  days,  a  lease  granted  with  a  condition  for 
re-entry  for  non-payment  of  rent  within  twenty  days,  in  case  no  sullicient 
distress  could  be  taken  on  the  premises,  whereby  to  levy  the  rent,  Src. ' 
is  not  a  good  execution  of  t'le  leasing  power  ;  because  such  conditional 
power  of  re-entry  is  less  beneficial  to  the  remainder-man  than  an  abso- 
lute power  of  re-entry  on  non-payment  of  rent  (d). 

If  contrary  to  the  clause  that  the  lessee  be  not  made  dispunishable 
for  waste,  he  be  inipowered  to  work  unopened  mines  (c),  to  fell  timber, 
or  the  like,  the  lease  is  void  ;  unless  in  the  case  of  a  building  lease,  where 
the  clause  would  be  deemed  repugnant  to  the  power,  and  the  lessee 
might  pull  down  old  buildings,  <s'^c.  in  order  to  erect  new  ones  (/). 

Where  a  power  to  lease  was  restrained  to  be  executed,  reserving  an- 
cient, usual,  and  accustomed  rents,  heriots,  boons,  and  services,  a  co- 
venant '*  to  keep  in  repair,"  was  held  to  be  "  an  ancient  boon,"  and 
the  omission  of  it  was  deemed  fatal  (,§•). 

Under  a  power  to  a  tenant  for  life  to  lease  for  years,  reserving  the 
usual  covenants,  t?c.  a  lease  made  by  him,  containing  a  proviso,  that  in 
case  the  premises  were  blov\n  down  or  burned,  the  lessor  should  re])uild, 

(")  AmJcr.  2T0.  (h)  Stat.  27  U.  u.  c.  10.  (c)  Sujd.  on  Powers,  527,  5m 

'•I'  13Kast,H'.  118.  (e)  Amhl  74T).  (/)  WilJes,  169.  (g;  Cited  Ibid  122. 


-.fl,    Vrr.l  Of  Ti<n.,<    „„.!>,■    I'omr^. 


01 


i.iiui  XMM- iiir  jiiii  Ndouitl  ccMS',  i<  \.,:ii  ;lijcju:y  iuiiiuig  that  huch  co- 
venant is  iinrisiial  (/<). 

VViiat  covenants  arc  usual  or  nut  i;  a  (iiuslioii  of  fact,  it  sf^t  ni«:,  for 

tlu:  decision  of  ;i  jury  :  for /i.v//<-/- J.  in   tin;  ])ni(^cliii-j  ca.«c,  olifcrvcd, 

fliat  "  tlic  Court  were  relieved  from  ditenuinirf!!j  wJielluT  the  coxcnant 

111  or  not;"  because  the  jury  liad  expressly  found  that  it  was 

umij.i.d  ('•) . 

13ut  if  tii-  ».Mti,uu.-'  10  a  lea'-c  uiiui  i  >nL  !i  ,i  power  l)f  ii;">:i  liw; 
uhoh', biirh  as  leave  the  parties  iipontfiC  same  fooling  as  uridtr  foninr 
leases,  (as  where  it  appeared  that  what  was  thrown  on  tlie  lan.ilord 
w:i5  compensateil  hy  what  vviu;  pniil  l)y  the  tenant),  their  diilei-iiig  in 
'ri\  i.i!  rininnstanrcs  w  ill  not  Itemdtria)  (r). 

lowahlc  lease  \\  if  h(  Id  not  to  he  mconFistcnt  wilh  a  covenant 
to  U-X  x.u\  manaij'e  to  the  hrst  adv.inl.ij;t,  with  reftre  ce  to  tliesti.jcct 
which  was  a  trust  for  creditors  (r/). 

It  rs  no  olij'ction  to  a  lease  undtr  a  power  ''  f!,;it  it  is  in  tn  st  for 
Iiiin  who  executes  the  power,"  provided  tue  legal  tenant  be  boun.i  d.i- 
ring  the  terjn  in  all  requisite  covenants  and  conditions  (c). 

J/ivery  is  not  necessary  to  a  lease  for  lives,  under  a  power,  (Ihoup-h  it 
lie  incident  thereto  at  common  law  ),  and  it  hath  been  hold  lo  i)e  a  for- 
feiture or  the  power  ;  but  Lord  Hale  conceived  it  was  not  a  furf-itire, 
because  a  lease  by  virtue  ola  power,  takes  eiiect  out  of  the  stttleuKut 
that  gives  the  [wwer,  and  by' sealing  tlic  lease  the  power  is  executed  ; 
and  then  the  livery  comes  too  late  to  afl'ect  it. 

If  a  power  be  lo  A.  or  his  assigns,  to  niake  leases,  ^-c.  the  power 
runs  wilh  the  estate  to  the  assignee  in  deed,  or  in  law. — If,  theref  )rc, 
a  power  be  given  to  a  lessee  for  years  and  his  assigns,  to  make  leaies 
for  lives,  such  power  goes  to  his  executor,  though  only  an  assigm:e  in 
Jaw ,  or  to  the  assii^nt e  of  the  executor.  But  a  power  to  an  e:.;  ciitor  lo 
make  leases  does  not  extend  to  the  executor  of  his  ex<  cutor  (  /  ). 

A  power  under  an  Act  of  Parliament  to  lessee,  his  executors,  ad- 
Diinistrators,  and  assi-!is,  to  grant  building  leases,  docs  not  extend  to 
tlie  tenant  in  a  renewed  lease,  according  lo  the  usual  course  of  church 
leases  (,'■). 

If  -/.  ^CLtl■,^  i.uid  to  tlie  use  of  himself  for  life,  with  p».  u  to  n;<ikc 
leases,  and  afterwards  to  D.  upon  such  trust  as  he  shall  altcrwards 
declare  ;  if  .-f.  declares  the  trust  for  payment  of^debts,  and  afterwards 
leases  at  a  small  rent,  the  lease  is  not  defeated  by  the  execoliL>n  of  his 
jH)w er,  for  it  is  pnecdent  to  it  (//). 

So,  if  a  man  having  a  power  annexed  to  Ws  estate,  charge  his  estate, 
11; I  afterwards  executes  his  power,  the  estate  wliieh  arises  by  the  cxc- 
ili'Mi  of  the  power  <\\'']  )»r -:.'.;. tI  f,.  the  cl'ir-c  (iiirinr  t  :o   ert.ite  : 

a)  I    '1'.    R.  705.  I'-      .M.  ru  '>ii  r,.i    .r       •,    .  (  r  j   l:u.).    UoiiJ    46.V 

rd)  13  Ves.  M7.  (i)  I  Biirt    184.  :.  HO      2  Jou    \  .<\. 

.■.,\   VI  \  ,..    -^y,  /■'.-.  -.  :..    4;7 

1(1 


62  Of  Leases  hy  Ttimntfur   Years.     [CLap.  III. 

as  if  tenant  for  life,  a\  1th  power  to  nial;e  leases,  grants  a  rent-cbarge, 
and  afterwards  ir.akt§  a  lease,  the  lessee  shall  take,  subject  to  the  rent- 
chari^e  during  the  life  of  the  lessor  (a). 

A  lease  under  a  poV^-  by  a  person  having  only  a  particular  estate, 
if  not  conformable  to  tiie  po\\  er,  is  not  good  at  law  ;  but  when  the  per- 
sons granting  the  lease,  have  at  law  the  inheritance,  with  directions 
only  how  Ihcy  are  to  execute  leases,  tl)C  legal  estate  passes  (6). 

If  there  be  a  power  of  revocation,  and  a  lease  for  years  is  made, such 
power  is  suspended  t/uodd  the  term,  l)iit  after  it  is  good  (r). 


Section  VIII.     Of  Leases  hy  Tenant  for  Years. 

it 

Asa  lessee  or  tenaiit  for  years  may  assign  or  grant  over  his  whole  in- 
terest, so  he  jr.ay  grant  it  for  any  fewer  or  lesser  number  of  years  than 
he  himseir  holds  it ;  and  such  derivative  lessee  is  compellable  to  pay 
rent,  j)crform  covenants,  8:c.  according  to  the  terms  agreed  in  such 
grant  or  assignment.  Also  it  is  said  [in  Broke  title  Distress  7,]  that  a 
termor  so  assigning  may  distrain  for  the  rent,  without  any  power  re- 
served fur  ih  :t  i)urpose  ;  thoui:;h  a  person  who  assigns  his  whole  in- 
terest cannot,' because  he  has'  no  reversion  (cl). 

}'i;t  such  derivative  lessee  is  not  liable  (to  the  original  lessor)  for  the 
rent  reserved  on  the  original  lease,  otherwise  than  as  his  cattle,  (^c.) 
may  I»c  liable  to  a  distress  for  rcnt-arrear  to  the  original  leswr,  as  any 
.'-trang^r's  levant  and  couchant  may  be  ;  for  there  is  no  privity  l^ietween 
liim  and  the  original  lessor,  as  there  is  between  a  lessor  and  a^l  assignee  : 
v.\\d  tlieiefore  such  an  one,  though  he  take  the  whole  term  except  one 
ciay,  shall  not  be  liable  to  any  of  the  covenants  in- the  original 
Ica.'C  (r). 


.SixiioA'  IX.     Of  Leases  hy  Tenant  from  Year  to  Year  ; 
or  for  a  less  Term, 

Any  one,  possessed  of  a  certain  quantity  of  interest,  may  alienate 
the  whole,  or  any  part  of  it.  unless  restricted  from  so  doing,  by  agree- 
ment ^vith  the  party  from  >\hom  he  derives  tliat' interest  or  estate,  or  by 
the  terms  upon  w  hich  he  takes  it. 

1.1  fact  the  tenant  has  it  as  a  right  incident  to  his  tenancy  to  make 
a  ;:uf)-tenaiicy,  in  order  to  do  which,  it  is  !)y  no  means  necessary  to  have 
tlie  nist  landlord's  assent :  the  law  gives  him  authority  to  assign  his 
inlerest  (  /"). 

A  tenant  from  year  to  year,  therefore,  may  assign  his  term,  or  may 

r>)  Hard.  415.  (b)n\fts.^O  (■•)  \  mh<\.  \\\. 

'V  !5ac    A\,r.  tit  "  Leases."  (e)  Ibi(J.  -   >  1  ::i>l    H    SM.  T's  M.  J'     •   s   t 


Sect.   \.j  ^>l    Leasts  bi^  Curinnalions.  d 

unlcr-k-t  part  of  it,  ;is  fuillirce  furriers  oftlic  year,  or  somai'.y  nioul..*, 
A'-c.  So,  upoji  the  same  principle,  oiu;  posscsscil  of  lands  or  linriu:  rf--, 
fur  a  loss  term,  as  for  half  a  year,  a  <iuarlcr,  or  a  month,  or  l!; 
inayo;nint  his  interest,  however  small  the  quantity,  or  any  portion  of 
it,  toanitlur:  for,  while  kucU  interest  endures,  he  has  tlie  alisolule 
disposition  of  it,  unless  some  agreement  submits  hetwccen  him  and  his 
lessor,  tliat  hy  curcumscribinj  his  power,  qualifies  that  dispoFitioii. 

A  tenant  at  will,  however,  cannot  le.Lse,  for  there  can  he  ni>  suili 
(hin-i;  a.s  an  under^ten;  nt  to  a  tenant  at  will.;  the  demise  itself  would 
amount  to  a  determin.ition  of  the  will.  Neither  can  he  surrender,  any 
more  than  he  can  i;rant ;  for,  to  surrender  also,  would  be  todctenuinc 
his  will,  and  relinquish  his  estate  (<■/). 

As  a  tenant  at  will  carmot  i^rahtor  surrender,  so  a/oitiori  rTinnot  a 
tenant  id  suilerance. 


Section  X.     Of  Leases  by  Corporations. 

With  respect  to  what  acts  a  corporation  a2,c;rcgatc  must  do  by  dectl, 
and  uhat  it  may  do  without  deetl,  it  is  a  question  which  seems  by  the 
old  books,  to  have  been  thcsul)ject  of  considcralile  coutrovci'sy  amon^- 
the  Justices.  Some  go  so  far  as  to  say,  that  without  deed,  a  corpora- 
tion cannot  do  any  act  whatever.  One  makes  a  distinction,  whi(a 
.^cemstobe  founded  in  good  sense,  between  the  case  of  a  corporation 
aggrej;ate,  consistijip;  of  many  persons,  one  capable,  and  the  other  iu- 
capabls,  as  abbot  and  convent,  and  corporations  aggre^^jate  of  many 
persons  capable,  as  mayor  and  commonalty,  or  dean  and  ciiaptcr  ;  the 
former,  he  seems  to  intimate,  may  do  many  acts  without  deed,  because 
the  abbot  is  the  only  person  capable,  and  the  oracle  of  the  whole,  tin- 
rest  being  incapable  of  any  act,  because  they  arc  dead  in  law  ;  but  en 
porations  of  the  otiier  kinds  being  composed  of  persons,  all  of  whom 
are  capable  of  action,  tiiere  is  no  individual  who  can  be  considered  a^ 
the  oracle  of  the  whole,  and  therefore  they  can  speak  only  by  their  lietil 
executed  in  due  form  (/,»). 

They  can  neither  make  a  disposition  of   their  prop,  riy,  nor  do  um. 
act  relating  to  it,  nor  receive  a  grant,  without  deed  :  thus  they  caiUMl , 
w  ithout  deed,  make  a  lease  for  years,  nor  grant  a  licence  to  take  awa^ 
their  trees  ;  and  if  a  disseisin  be  made  to  their  use,  they  caimot  atjrcj 
but  by  writing  under  their  common  seal  (c). 

But  though  they  cannot  make  a  lca.sc  without  deed,  yet  before  tin 
4atutc  of  Frauds,  a  lease  made  by  them  might,  without  deed,  hav  . 
been  granted  over  by  the  lessee. 


64  Of  Leases  bij  Corporalions.         [Cliaj).  III. 

So,  it  is  taiil,  tlial  if  a  lease  for  years  l)e  made  to  a  corporation  who 
cannot  take  w  itiiout  deed,  and  tliey  grant  it  over,  the  grantee  may 
entitle  himself  thereto,  without  sliewing  tlic  deed;  because,  the  lease 
of  the  thing  in  its  nature,  might  have  passed  without  deed,  although 
the  persons  who  took  it  could  not  take  it  without  tleed  :  also,  his  pos- 
session is  some  privilege  for  his  title  («). 

.  If  a  lease  for  years  be  made  to  a  corporation  aggregate  of  many, 
they  cannot  make  an  actual  surrender  thereof,  but  by  deed  under  their 
seal :  but  if  they  accept  a  new  lease  thereof,  this  is  a  surrender  in  law 
of  tlieir  first  lease,  and  may  therefore,  by  the  statute  of  Frauds,  be 
Ai  ithout  writing  (/<). 

Neither  can  a  corporation  aggregate  without  deed,  authorize  their 
servant  or  agent  to  enter  into  land  on  their  behalf,  for  a  condition 
broken  ;  though  this  does  not  seem  to  have   been  always  free  from 
doul)t  (r).  In  one  place  it  is  said,  that  a  man  cannot  justify  as  servant 
to  a  corporation,  without  shewing  a  deed  of  retainer,  and  it  is  con- 
trasted w  ith  the  case  of  a  man  avow  ing  as  bailillto  a  corporation,  which 
may  be  done  without  deed.     In  another  place,  where  it  is  reported  to 
hcive  been  said  by  Littleton,  that  it  was  the  opinion  of  all  the  Judges  in 
the  Common  Pleas  and  Khig's  Bench,  that  an  assignment  of  auditors 
by  a  commonalty  is  good  without  deed,  it  is  added,  "  and  so  of  a  justi- 
fication by  their  commandment."     In  a  third  place,  it  is  said  to  be  the 
better  ophiion,  that  he  who  pleads  the  fi-eehold  of  dean  and  chapter, 
and  that  he  entered  by  their  commandment,  ought  to  shew  a  command 
in  writing  ;  and  the  same  of  a  servant  of  mayor  and  commonalty.     In 
another  place,  a  distinction  is  made  between  a  corporation  which  has  a 
head,  as  mayor  and  commonalty,  and  a  corp-^ration  without  a  liead  ; 
hi  the  first  case,  it  is  said,  that  a  man  may  justify  entering  into  land 
]>y  the  comandment  of  the  mayor,  without  writing ;  in  the  latter,  that 
a  conmiand  to  enter  must  be  by  writing. — Rol/e  lays  it  down  as  clear 
ha^v-,  that  "  a  corporation  aggregate  cannot  command  their  bailiff  t'^ 
enter  into  land  of  their  own  leasing  for  years,  for  a  condition  broken 
without  deed ;  for  such  commandment  without  deed  is  void  {d)  :" 
and  this  is  consonant  to  the  prhiciple,  that,  where  the  interest  or  title 
of  the  corporation  is  concerned,  their  officer  mast   be  appointed  by 
deed. 

It  seems  however  to  have  been  generally  admitted,  that  a  bailiiT 
might  be  appointed  to  take  a  distress  without  deed.  It  is  even  said, 
that "  it  is  not  necessary  that  he  should  be  maJc  baiiill"  before  lie  dis- 
train ;  it  is  suflicient  if  the  corporation  agree  to  it  afterwards,  for  that 
his  being  baiiiiT  is  not  traversable,  and  a  menilier  of  the  corporation 
may  distrain  in  right  of  the  corporation,  and  justify  a^  baiiiif."  Again, 

'"    ^-"'••'ic.  no-  /,    B,,.    Abr.  lit.  rorpoiaijoiis,  (K    3.;  (c)  Il.id.  2i2. 


Sect.  X.]  Of  Leases  bij  Corporal  ions.  66 

it  is-  sai.l,  ii  man  may  justify  as  !)aiIiJl  to  d^aii  and  cliaptcr,  and  the 
like,  without  phew  in-^  the  deed  const  it  utiiii;  him  haillH:"  and  in  mort: 
modern  times,  it  has  Irth  laid  down  as  a  rule,  that  ''  a  coriioratiou 
aggrc-ate  may  appoint  a  bailiff  to  distrain  w  ithout  deed  or  warrant, 
because  the  ilistress  neither  vests  an  interest  in  tliem,  nor  devests  one 
out  of  tin  m  (a)." 

W  h(  re  any  pei-sonal  act  is  necessary  in  the  case  of  a  corporation,  that 
act  mtist  l)e  done  by  attorney  appointed  by  deed  under  their  conimon 
seal  (■;). 

Thus,  if  they  accept  nnt  from  the  assignee  of  a  lease  made  by  them, 
that  njust  be  by  warrant  of  attorney,  in  order  to  diecljarge  the  ori- 
jjinal  lessee:  unless  the  corporation  have  a  particular  officer,  ulio«=e 
business  it  is  to  mana^;c  the  revenues;  as  is  the  cu£C  of  the  city  of 
London.  So,  wherever  delivery  of  a  deed  is  thought  necessai-y,  that 
mu4  be  ljy  attorney,  who  nmst  have  a  letter  of  attorney  for  the  pur- 
pose (r). 

Hut  in  an  ejectment  by  a  corporation  against  a  tenant  from  year  to 
year,  a  notice  ta  quit  given  by  a  person  acting  as  steward  of  the  corpo- 
ration, is  sufficient,  without  evidence  that  he  had  an  authority  under 
seal  from  the  corporation  for  tliis  purpose  (r/). 

A  dean  and  chapter  made  a  lease  for  three  lives,  and  a  letter  of  at- 
torney to  deliver  it  on  the  lantl.  Tivisdcn  J.  thought  the  letter  was 
void,  the  lease  being  a  perfect  lease  by  sealing,  and  the  delivery  after- 
wards  insignilicant  ;  but  Hale  C.  J.  observed,  that  since  he  had  sate  in 
the  court,  it  had  been  ruled,  that  Ihc  latter  execution  was  good,  and 
that  the  lease,  on  being  sealed,  was  but  an  escrow,  where  the  letter  of 
attorney  was  delivered  at  the  same  time  (r). 

On  evidence  at  a  trial  in  ejectment,  the  case  was  this. — A  dean  and 
cliapt(  r  having  a  right  to  certain  land,  but  being  out  of  possession, 
sealed  a  lease  with  a  letter  of  attorney  to  deliver  it  upon  the  land,  which 
was  done  accordiiigly  ;  and  this  was  held  to  be  a  valid  transaction,  on 
I  lie  ground,  that  though  putting  the  seal  of  a  corporation  aggregate  to 
a  deed  be  equivalent  to  a  delivery,  yet  tlic  letter  of  attorney  to  deliver 
it  on  the  land,  siisjicnds  the  operation  of  it  till  actual  delivery  of  it  by 
the  attorney  (/  ). 

A  deed  by  a  corporation  out  of  ])osse'^sion,  containing  ahase  jf  land 
and  letter  of  attorney,  is  not  good  under  the  common  •  '  'Ox  iH,,i. 
ney  does  not  deliver  it  upon  tne  land  (if). 

In  ejectment,  the  plaintilf  declared  upon  a  demise  niude  to  him  by 

IJje  alderman  and  biugesses  of ,  w  ilho.d  setting  forth  that  it  wa> 

by  deed,  or  under  the  seal  of  the  corpor  di  )n,  and  on  a  writ  of  error, 
it  vkad  held  uc.l  enotigli  ;  fur  Ihut  this  being  a  fictitious  action  to  try 

.>^  Kyd.  mi  Corp    '.•  i)  I'jii).  V.P  ?    ' 


66  Of  Leases  by  Corporations.        .  LClia[).  111. 

Ihe  title,  the  -demise  need  nut  now  be  set  out  to  have  been  made  by 
deed  {a). 

It  is  a  general  rule,  that  a  corporation  cannot  take  but  1)y  their  cor- 
porate name :  it  is  also  a  general  rule,  that  it  cannot  grant  but  by  its 
proper  name  of  incorporation,  tliough  e\  ery  minute  variation  in  the 
nansc  is  not  material  lo  avoid  a  grant  (^). 

.'  As  to  naming  the  corporation,  \vc  shall  only  observ^e,  that  corpora- 
tions aggregate,  as  dean  and  cha}>ter,  mayor  and  commonalty,  warden 
;ind  fellows,  <^'r.  may  make  or  confirm  leases,  Avithout  expressing 
I'ither  the  christian  or  surname  of  the  dean,  mayor,  warden,  ^-c.  be- 
cause in  thcii"  politic  capacity,  as  a  corporation  aggregate,  they  continue 
always  the  same,  and  are  said  never  to  die  ;  but  in  leases  or  confirma- 
tions by  a  bishop,  dean,  mayor,  ^-c.  pr  other  sole  corporation,  both 
tlieir  christian  and  surname,  or  al  least  their  christian  name,  ought  to 
be  expressed,  [as  John  bishop  of  P.]  because  they  are  subject  to  death 
and  succession,  <frc.  and  therefore  must  be  particularly  named,  to 
shew  whose  lease,  <^-c.  it  was,  and  so,  some  hold  too,  in  the  first 
case  (f ). 

Where  a  corporation,  declaring  in  a  covenant  by  their  modern 
name,  stated  that  citizens,  ^-c.  a\  ere  from  time  to  time  immemorial  in- 
corporated by  divers  names  of  incorporation,  and  at  the  time  of  mak- 
ing the  indenture  by  ^4.  B.  declared  on,  were  known  by  a  certain  other 
name,  by  which  name  A.  B.  granted  to  them  a  certain  water  course, 
and  covenant ed  for  quiet  enjoyment;  held  that  the  deed  granted  the 
water  Course  to  them  l)y  such  name  was  evidence  as  against  the  defend- 
ajits,  who  claimed  under  the  grantor,  that  the  corporation  was  known 
by  that  name  at  the  time,  upon  an  issue  taken  on  that  fact  (f/). 

A  corporation  aggregate  may  take  any  chattel,  as  bonds,  leases,  &:c. 
Ill  its  corporate  capacity,  \vliicK  shall  go  in  succession,  because  it  is 
always  in  being  (<-).      ,,  -  '  -.  _  ^ 

But  regularly,  no  cliattel  shall  go  .in  succession,  in  case  of  a  sole  cor- 
poration. Hy  custom,  however,  it  may:,  as  in  the  iiistance  of  the 
t.hamberlain  of  London. — Therefore,  if  a  lease  for  years  be  ijiadc  to  a 
J)isi!up,and  his  successors,  and  thebishop  dies,  this  shall  not  go  to  his 
?ii«  cehsors,  !)ul  lo  his  executors  (/). 
.  i\  corporation  cannot  be  sued  in  an  action  of  assumpsU. 

A  jppvenant  in  a  corporation  lease,  to  renew  upon  the  falling  in  "  of 
!  1'  :  ife.for  ever :"  thqre  is  no  equity  to  extend  it  to  the  case  where  two 
'  I    Hihcred  to  fall  in,  although  a  compensation  be  oiiered  {^g). 

i  his  subject  is  connected  with  that  which  follows ;  other  information 
Ihcrt'fore  wil!  be  found  under  the  next  article. 

'■■    ■.\''0.  Cont.  Cro.  .I;.c.  G13,  dfiiiied  hy  Hiblt  C.  J.  lo  bi;  law,  in  1  Ld.  Raym.  136, 
■  '     r   .:  XU,!.  (c)  2  Inst,  r.66,     Bac.  Abr.  lit.  Leasts.  (O.  3)  (d)  10  Kast,  487. 

(<■;  Hae.  ALr.  lii.  Corpoi ations.  (B."d  )  (/)  luid.  (g)  3  Bi«.  K.  523. 


r*cti.  Xl.t        OfLdiscsbjj  ((flisidiUcul  JUrsons.  »)7 

Sf.(TIO.\  Xr.     Of  fjcasrs  In/  rrrlrsiarfirnl  Pcrsr'Uy. 

Asto  lcns< ,- .'.;  . . .  A  .W..J...  .i.' j>(.r-.»ii- ,  .-.../.y .,,../.  .  .  ,./»-/,,/,.,./„  ^/ 
the  dean  and  chapter.,  parsons  or  vicars  with  the  consent  of  their  patrons 
and  ordinaries,  archdeacons,  prebemlt^,  and  sucli  as  arc  in  i]\c  natnrc  of 
prchends,  as  precentors,  chanters,  treasurers,  chancellors,  an<I  biich 
like;  also,  misters  anil  governors,  and  fellous  of  any  collcgcb'  ir 
houses  (by  wljat  name  soever  called)  deans  and  chapters,  ina/5ters  or 
guardians  of  any  hj-^pita!,  and  their  bretlnen,  or  any  otlicr  body 
politiCjSpiritual  and  ecclesiastical,  (roncurrt  nl:(jus  /its  qua  in  jure  rcqui- 
ruiihir)  might,  by  the  ancient  common  law,  have  made  leases  for  lives 
or  yeai-s,  or  any  other  estate  of  their  spiritual  or  ccciesiaslical  living,  for 
any  time  witlionl  suit  or  limitation  (n). 

Uy  the  before-mentioned  statute,  of  3::^  //.  8.  c.  28.  bishops  and  the 
rest  of  the  said  spiritual  persons,  (except  parsons  and  vicars)  may,  at 
this  day,  make  leases  of  their  spiritual  livinifsfor  three  liics,  or  frvr/Uf/- 
one  i/cars,  and  such  Iciises  ivill  be  i^ood  both  agdi^ist  thrmschcs  and  their 
successors.  Hut,  in  order  to  be  bintUng,they  nuist  have  the  effect  of  all 
the  qualities  or  properties  before-mentioned  and  rerjuireil  by  the  said 
statute,  in  the  lease  made  by  tenant  in  tail,  and  be  made  after  that  pat- 
tern. Hut  with  respect  to  the  old  lease  being  surrendcroil,  there  is  an 
exception  in  favour  of  a  bishop  ;  for  if  he  nuke  a  lease  for  t  wcnty-one 
years  to  come  to  one  man, and  then,  within  a  year  after,  make  another 
le;use  to  anotlur  for  twcnly-oneyean',  to  hegin  from  the  making  of  it, 
this,  80  as  it  hu  conhrmed  by  dean  and  chapter,  is  resolved  to  be  a  good 
lease.   \  lease  by  a  bislmp,  wlierein  more  than  the  old  rent  was  reserved, 

u  ,.  1    f(?  -  v^i ;  twooithe  Judges   however,*  \\ho  \  '-iit  when 

argued^  were  of  a  diiierent  opinion  (0). 

:Ne\l  lollows,  in  order  of  time,  the  dis^iblincror  restraining  statute,  1 
Eli:,  r.  19.  (made  entirely  fur  tlie  l)enciit  of  thepuc^essor)  which  enacts, 
that  all  grants  l>y  arciibishops,  and  bisliops,  (which  include  even  those 
confirmed  Ijy  the  dcaii  and  ciiapter  ;  tlie  which  were  good  at  com- 
mon-law) other  than  for  the  term  of  tnie  and  twenty  years,  or  three 
lives  (i-om  the  making,  without  reserving  tlie  usual  rent,  shall  be  void. 
Concurrent  leases,  if  confirmed  by  the  dean  and  chapter,  are  held  to 
be  within  the  e.vcej)tionof  this  statute,  apd  therefore  valid  ;  provided 
they  do  not  exceed  (to.jethcr  with  the  lease  in  being)  the  term  per- 
mitted by  the  act.  Hut,  by  a  saving  expressly  made,  the  statute  did 
not  extend  to  any  grants  made  by  any  bishop  to  the  crown  :  the  statute 
1  /.  I.  c.  S.  however,  extends  the  prohibition  to  grants  and  leases  made 
t'l  t:i"  Imv'  ,  as  well  as  any  af  his  sulj^jccts.— Next  rmiuv  f  I,  sf.ttute  l.J 
xplaincfl%an(l enforced  by  the  statul  I.  S<.  1  k 

Ki  !1.  and    :  ,'9.  nh^ch  cxltui!  trictions 


6ii  Of  Leasts  by  ccclesiasiical  Persons.    [Chap.  III. 

laid  by  the  last -mentioned  statute  on  Ijishops  to  certain  other  inferior 
corporations,  both  sole  and  aggregate  (a). 

These  statutes  arc,  however,  in  some  respects  altered  by  stat.  39  K- 
40  G.  3.  r.  41.  s.  1.  whercl)y  it  is  enacted,  that  where  any  part  of  the 
possessions  of  any  archbishop,  bishop,  master,  and  fellows,  dean  and 
chapter,  master  or  guardian  of  any  hospital,  or  any  other  person  or 
persons,  or  body  or  Ijodies  politic  or  corporate,  having  any  ecclesiastical 
living,  shall  be  demised  by  several  leases  wliich  was  formerly  demised 
by  one,  or  where  a  part  shall  be  ilemised  for  less  than  tiie  ancient  rent 
and  the  residue  shall  be  retained  in  the  possession  of  the  lessor;  the 
several  rents  reserved  on  the  separate  demises  of  the  specific  parts  shall 
\)C  tahcn  to  be  the  ancient  rents  within  the  meaning  of  the  statutes  32 
//.  8.  c.  23.  1  EUz.  c.  19.  13  Eliz.  c.  10.  and  14  Eliz.  c.  11. 

Section  2.  provides,  that  no  demise  made  before  passing  the  act  shall 
be  valid,  unless  the  several  rents  reserved  upon  the  separate  demises  of 
separate  parts  of  tenements  accustomai;ly  demised  under  one  lease,  or 
if  part  be  reserved  in  the  possession  of  the  lessor  or  lessors,  unless  the 
rent  reserved  on  the  parts  demised  shall  be  at  least  so  far  equal  to  the 
whole  amount  of  the  ancient  rent  or  rents,  that  the  part  not  demised 
shall  be  sufTicient  to  answer  the  diiierence. 

Section  3.  provides,  that  where  the  whole  of  such  demises  shall  in 
futui-e  be  demised  in  parts,  the  aggregate  rents  reserved  shall  not  be 
less  than  the  accustomed  old  rent,  and  so  in  proportion,  where  a  part 
shall  be  retained  in  possession  by  the  lessor. 

Section  4.  provides,  that  no  greater  proportion  of  the  accustomed 
rent  shall  be  reserved  by  any  separate  lease  than  the  part  of  the  pre- 
mises demised  will  bear. 

Section  5.  provides,  that  where  any  specific  thing  shall  have  been 
reserved  by  the  lessor,  it  may  be  charged  on  a  competent  part  of  the 
premises;  and  in  case  such  provision  shall  have  been  made  for  pay- 
ment of  any  sum  of  money,  stipend,  ^c.  it  shall  be  deemed  la\vrul  if 
the  lands,  &c.  charged  be  of  greater  annual  value,  exclusive  of  ihc 
rent  reserved. 

Section  6.  provides,  that  no  lease  shall  be  confirmed  whereon  no  an. 
nual  rent  is  reserved  to  the  lessors,  Src. 

Section  7.  provides,  that  the  act  shall  not  authorize  the  reservation 
of  any  rent,  on  any  such  lease,  made  by  any  master,  t^-r.  of  any  college, 
in  any  other  manner  than  required  by  the  18  Eliz.  c.  6. 

Section  8.  provides,  that  where  payments  have  been  reserved  to 
vicars,  curates,  schoolmasters,  and  other  persons  than  the  lessor,  pro- 
vi.'-ion  shnll  be  made  in  leases  for  the  future  payment  thereof  out  of 
premises  of  three  times  the  annual  value,  exchisive  of  the  rent,  cxccjit 
(section  9.)  such  payment  depends  only  on  the  will  of  the  person 
gnnting  or  renewing  the  Icisc. 

L   1.1    Con:   .",20. 


Sect.  XI.]     Of  Lt rises  hij  ecclesiastical  Persons.  69 

Section  10.  proviilcs,  that  persons  hol(lin;j;  Fuch  leases  in  trust,  or 
granting  under-leases:  of  specific  parts  iiruler  covenants  of  renewal,  may 
surrender  llicni,  in  order  that  sej)arate  leases  may  Ijc  j^ranted  by  the 
original  lessors  to  the  ccstuif/iic  trusts,  and  under-lessees,  on  reasonable 
terms,  subject  to  the  accustomed  rent,  «S'v.  and  every  such  surrender, 
and  the  new  leasts  granted  thereupon,  shall  be  u,ood  in  law  and  ecpiity, 
notwithstanding  such  under-lessees  and  ccstuii/tic  trusts  may  be  infants, 
issue  unborn,  \.c.  or  other  persons  incapacitated  to  act  for  themselves; 
provided  such  new  leases  be  for  their  bcnclit,  and  such  be  e.\])resi;Iy 
declared  in  the  body  of  each  leiuse. 

From  laying  all  u  hich  together,  we  may  collect,  tliat  all  colleges, 
cathedrals,  and  other  ecclesiastical,  or  cleejuosynary  corporations,  and 
all  parsons  and  vicars  are  restrained  from  making  any  leases  of  their 
lands,  unless  under  the  following  regulations :  1.  They  nmst  not  exceed 
twenty-one  years,  or  three  lives,  from  the  making.  2.  The  accustomed 
rent,  or  more,  must  he  yearly  reserved  thereon  ;  respecting  which,  the 
first  sections  of  3'J  and  K)  G.  3.  are  particularly  explanatory.  3.  Houses 
in  corporatiops  or  market-towns  may  l)e  let  for  forty  years,  provided 
they  be  not  the  mansion-houses  of  the  lessors,  nor  have  above  ten  acres 
of  ground  beloni:,ing  to  them,  and  pro\  ided  the  lessee  be  bound  to  keep 
them  in  repair;  and  they  may  also  be  alienaUd  in  fee  simple  for  lands 
of  e(pial  value  in  recompense  (n)  ;  therefore,  a  bond  or  covenant  for 
rentlering  or  making  a  lease  \s  ithin  a  city  or  town  may  be  enforced  (/;). 
4.  >\'here  there  is  an  old  lease  in  being,  no  concurrent  lease  shall  be 
made,  unless  where  the  old  one  will  expire  within  three  years  (r). 
Since  the  statute  of  F,  auds  and  Perjuries,  (29  C.  2.  c  .'>.)  which  requires 
all  surrenders  to  be  in  writing,  it  was  usual  to  liave  a  covenant  from 
the  parson  or  corporation  to  whom  the  surrender  was  made,  tliat  they 
vould,  u ithin  such  a  time,  make  a  new  lease,  under  such  and  such 
terms:  the  statute,  however,  docs  not  extend  to  surrenders  in  law,  by 
taking  a  new  lease  in  writing  (r/).     No  lease  (by  the  equity  of  the  sta- 
tute) shall  be  made  without  imj)eachment  of  waste.    G.  All  bonds  and 
covenants,  tending  to  frustrate  the  provisions  of  the  statutes  of  J3  and 
18  Eliz.  shall  be  void  (r). 

As  to  leases,  therefore,  made  by  parsons,  vicars,  and  otJicrs,  having 
benefices  or  promotions  with  cure  of  souls,  these  things  are  to  be  ob- 
served; 1.  That  parsons  and  vicars  are  expressly  excepted  out  of  32 
//.  8.  c.  28.  so  that  they  are  not,  as  other  sole  corporations,  enalded  by 
that  statute  to  make  any  leases  to  bind  their  successors  wjlthout  the  con- 
firmation of  the  patron  and  ordinary,  but  remain  as  they  did,  perfectly 
at  common-law,  for  any  thing  in  that  statute.  2.  That  an  annual  rent 
must  be  reserved  to  the  lessor  or  lessors,  otherwise  the  lease  cannot  be 
confirmed.     3.  That  they  are  not  restrained  by  IS  Eliz.  c.  lU.  from 

(c)  B»c  Al.r.  tit.  Lc»«s    ^E  ?  ; 
iO  2BI  Pim   nso. 


(a)  Hob.  289. 

{h':  2  B!  Cora    300. 

^c^  3?  «i  40  G.  ?.c.«l   ! 

•   10. 

11 

70  Of  Leases  hy  eccksiaslical  Persons.     [Chap.  III. 

making  leases  for  twenty-one  years,  or  three  lives ;  but  then  sucli  leases 
must  not  only  be  conlirmed  by  the  patron  and  ordinary,  but  must  also 
be  made  in  conformity  to  the  rules  or  qualities  before  mentioned, 
other%\  ise  they  will  not  bind  the  successor.  4.  They,  as  well  as  others, 
are  restrained  by  J 3  EHz.  c.  10.  from  making  leases  for  any  longer 
time,  notwithstanding  any  confirmation,  or  conformity  to  those  rules  or 
qualities  {a). 

Another  restriction  occurs  with  regard  to  college  leases  (/;),  Which  is 
created  by  stat.  18  Eliz.  c.  G.  (and  is  specially  exempted  from  the  ope- 
ration of  the  39  Sc  40  G.  3.  c.  41.  by  s.  7.  of  that  Act,)  by  which  it  is 
directed,  that  one  third  of  the  old  rent  then  paid,  should  for  the  future 
be  reserved  in  wheat  or  malt,  reserving  a  quarter  of  wheat  for  each 
(js.  S(/.  or  a  quarter  of  malt  for  every  os.  or  that  the  lessees  should  pay 
the  same  according  to  the  price  that  wheat  and  malt  should  be  sold  for 
in  the  market  next  adjoining  to  the  respective  colleges,  on  the  market- 
day  before  the  rcntbecomes  due.  This  sagacious  plan  is  said  to  have  been 
the  invention  of  Lord  Treasurer  Burleigh  and  Sir  Thomas  S»iith,  then 
principal  Secretary  of  State ;  who  observing  how  greatly  the  value  of 
money  had  sunk,  and  the  price  of  all  provisions  risen,  by  the  quantity 
of  bullion  imported  from  the  newly  found  Indies^  devised  this  method 
for  upholding  the  revenues  of  colleges.  Their  foresight  and  penetration 
have,  in  this  respect,  been  very  apparent.     The  corn  rent  has  made  the 
old  rent  aj)proach  in  some  degree,   nearer  to  its  present  value  (r)  ; 
otherwise,  it  should  seem,  the  principal  advantage  of  a  corn  rent,  is  to 
secure  the  lessor  from  the  effect  of  a  sudden  scarcity  of  corn. — The 
leases  of  beneficed  clergymen  were  farther  restrained,  in  case  of  their 
non-residence,  by  stat.  13  Eliz.  c.  20.    14  Eliz.  c.U.    18  Eliz.  c.  11. 
and  43  Eliz.  c.  9.     But  by  43  G.  3.  c.  84.  s.  10.  the  13  Eliz.  c,  20.  is 
repealed,  together  with  every  explanation,  <?r.  thereof  made  by  the  14 
Eliz.  r.  11.  18  Eliz.  c.  11.  and  43  Eliz.  c.  9.  and  the  penalties  for  non- 
residence  are  altered  altogether.     As  far  as  the  43  G.  3.  respects  the 
present  subject,  it  may  be  observed  that  by  sect.  34.  all  contracts  or 
agreements  made  after  the  passing  of  the  Act,  for  the  letting  of  houses 
of  residence,  or  the  buildings,  gardens,  orchards,  and  appurtenances 
necessary  for  the  convenient  occupation  of  the  same,  belonging  to  any 
benefice,  donation,  perpetual  curacy,  or  parochial  chapelry,  to  which 
houses  of  residence  any  spiritual  persons  shall  be,  by  the  order  of  the 
archbishop  or  bishop,  required  to  proceed  and  reside  therein,  (a  copy  of 
such  order  being,  immediately  on  the  issuing  thereof,  transmitted  to 
one  of  the  churchwardens,  who  shall  forthwith  serve  it  on  the  occupier 
of  such  house  of  residence,  or  left  at  the  same)  shall  be  null  and  void  ; 
and  any  person  ccntinuing  to  hold  such  house  or  any  such  building,  <?•<?. 
or  premises,  after  the  day  on  which  such  spiritual  person  shall  by  the 
said  order  be  directed  to  reside  therein,  and  after  service  of  such  copy 

(T)  Bae.  Abr.  tit.  Leaass,  (E)  (fc)  2  Bl.  Com.  322.  (c)  Christian's  N.  i. 


Scrt.  XI. J  (H  f^rdsts  hi/  ((cltsiifilirtil  /\is(nis.  11 

as  aforesaid,  shall  forfi  it  forty  s!iillirii;s  for  every  day  he  slj.ili,  without 
the  archbishop's  or  bishop's  consent  in  writings  wilfully  contin  le  to 
hold  sucii  house,  building,  8cc.  tlic  said  penalty,  or  penalties  to  be 
recovered  by  action  of  debt,  bill,  plaint,  or  information  in  any  coiirt  of 
record  at  ir>  slminster,  or  the  courts  of  great  sessions  in  U'alrx,  and  the 
whole  to  go  to  the  person  suing,  together  w  ith  costs :  l)nt  in  case  of  any 
contract  before  the  Act,  the  person  hohling  shall  n  jt  be  liable  to  any 
penalty  for  three  calendar  months  from  the  service  of  such  order  as 
aforesaid:  ami  sequestration  for  disol>ediencc  to  reside  shall  not  issue 
for  three  calendar  months,  to  be  computed  from  the  service  ''f 
such  order  of  the  archbishop  or  bishop.  Neither  shall  any  person  be 
liable  fornon-rcsidencc  while  such  tenant  shall  continue  to  occupy.  5. 
35. 

At  common  law,  if  a  parson  liad  made  a  lease  for  years  of  his  glebe 
land,  to  begin  after  his  death,  or  granted  a  rent-cliarge  in  that  manner, 
aiid  such  lease  or  grant  were  confirmed  by  the  patron  and  ordinary, 
this  would  have  bound  the  successor  of  the  parson  ;  because  hero  were 
the  consent  and  concurrence  of  all  persons  interested,  and  the  lease  or 
charge  bound  immediately  from  the  perfecting  of  the  deed  by  the  par- 
son, patron,  and  ordinary,  though  it  w  as  not  to  take  eifect  in  posses- 
sion till  after  the  parson's  death :  but  now,  no  confirmation  whatever 
uill  make  such  lease  or  grant  good  against  the  successor,  l>y  reason  of 
the  statutes  made  to  avoid  them  (a). 

If  a  parson  obtain  a  grant  to  build  houses  on  church  or  college  lands, 
which  is  confirmed,  (in  case  where  confirmation  is  necessary),  yet  this 
grant  is  no  alienation  against  the  statutes,  but  is  only  a  covenant  or  li- 
cense, and  nothing  else;  for  the  soil  remains  in  the  grantor,  and  l)y 
consequence  the  houses  built  thereon  arc  in  him  (//). 

In  some  cases,  the  confirmation  of  the  patron  is  necessary,  and  in 
some  not ;  wherein  this  diversity  is  taken  in  tiie  books.  That  such  sole 
corporations,  who  have  not  the  absolute  fee  and  inheritance  in  them,  as 
prebends,  parsons,  vicars,  and  such  like,  if  they  make  any  leases  or 
estates,  there  in  order  to  bind  tlieir  successors,  tlie  patron  must  confirm 
the  same :  but  such  sole  corporations  wlio  have  the  w  hole  estate  and 
right  in  them,  as  bishops,  abbots,  &,c.  or  such  e-orporations  aggregate 
\Tho  have  the  wliole  fee  and  inheritance  in  them,  as  dean  and  chapter, 
masters,  fellows,  and  scholars  of  any  college,  hospital,  ^c.  these  m  ly 
make  leases  to  bind  their  successors,  without  any  confirmation  of  the 
patron  or  founder,  though  the  bishop,  abI)ot,  dean,  master,  &c.  were 
presentable  ;  and  the  re;ison  of  this  diversity  appears  in  the  nature  of 
the  right  with  whicii  each  is  invested  (r). 

But  if  a  parsonage  or  vicarage  be  a  donative,  then  the  confirmation 
of  patron  alone  is  sufilcicntto  all  leases,  &.c.  made  by  the  parson  or 

'a)  Bac  Abr.  tit.  Lmscs.  (E.)  (6)  Ibi<l.  ('^  B»c.  Abr.  til.  Lea»es,  (H.  2  ) 


72  Of  Leases  hy  ecclesiastical  Persons.        [Chap.  Ill, 

vicar,  and  shall  bind  the  successor  without  the  confirmation  of  any 
other  (ji). 

Yet,  if  there  be  a  lord-paramount,  as  well  as  an  immediate  patron, 
confirmation  of  the  immediate  patron,  without  the  other's  confirmation, 
is  not  good  ;  as  if  a  parson  be  patron  of  the  vicarage  of  the  same 
church,  and  the  vicar  makes  a  lease  confirmed  by  the  parson  and  or- 
dinary, this  is  not  good  without  the  confirmation  of  the  patron  of  the 
rectory  also,  because  both  have  an  interest  in  the  possessions  of  the 
vicarage  [b). 

As  a  patron  may  confirm  explicitly  by  his  deed  or  writing,  so  may 
he  also  confirm  by  consequence  of  law  ;  for,  if  a  person  makes  a 
lease  for  years  to  the  patron,  who  grants  or  assi;i;ns  it  over  to  another, 
this  amounts  to  a  confirmation  in  law  by  the  patron,  because  a  confir- 
mation being  nothing  but  an  assent  under  the  hand  and  seal  of  the 
party  confirming,  such  assent  in  this  case  sufficiently  appears  by  his  as- 
signing over  the  lease  to  another  (r). 

Another  diiftrence  observable  in  the  manner  of  confirming  such 
leases  as  we  are  treating  of,  is,  as  to  their  duration,  or  continuance: 
for,  if  a  parson  make  a  lease  for  twenty-one  years  at  this  day,  and  the 
patron  and  ordinary  confirm  his  estate  therein  for  seven  years,  or  (after 
reciting  the  lease)  "  not  beyond"  that  term,  yet  is  the  estate  or  lease 
■^vell  confirmed  for  the  twenty-one  years ;  for  when  they  confirm  the 
estate  of  the  lessee,  that  is  intire,  and  cannot  be  divided  (c/). 

As  to  the  estate  which  they  who  make  such  confirmation  ought  to 
have,  to  make  the  leas^  eilectually  binding  upon  the  successors,  this 
regards  chiefly  the  patron,  whose  advowson  of  right  of  patronage,  being 
a  temporal  inheritance,  and  considered  as  such,  is  to  be  governed  by 
the  same  rules  as  other  temporal  inheritances  are :  his  confirmation, 
therefore,  being  in  nature  of  a  charge  upon  the  advowson,  is  to  be 
directed  by  the  estate  which  he  Lath  in  the  advowson,  and  can  con- 
tinue no  longer  than  that  endures  {e). 

If,  therefore,  the  patron  had  a  conditional  estate  in  the  advowson 
and  he  confirm  a  lease  of  the  parson's,  and  afterwards  the  condition  be 
broken,  this  defeats  also  his  confirmation,  so  that  the  succeeding  in- 
cumbent shall  not  be  bound  by  it.  So,  if  a  church  be  full  of  a  parson, 
and  afterwards  another  is  made  parson,  and  he  makes  a  lease  for  years, 
which  is  confirmed  by  the  patron  and  ordinary,  yet  the  lease  is  void  ; 
})ecause  he  who  made  it  was  not  parson,  the  church  being  full 
before  (/). 

As  to  the  time  of  confirmation,  generally  speaking,  it  is  not  material 
whether  it  bo  before  or  after  the  making  of  the  lease,  which  is  to  be 
confirmed,  so  it  be  made  in  the  life-time  of  the  parties  who  make  the 
/ease  ;  for  the  confirmation  is  but  an  assent  or  agreement  by  deed,  to 

fn)  Ba<'.  Abr.  lit.  Leases,  (G.  C)  (h)  Ibid'.  (e)  Ibii 

^4)  Ibhf.  (c)  Ibid.  (G.  P.)  fA)  Tbhl. 


Sect.  XII.]     Of  Leases  hi/  Tntsleis  of  Charilits.  73 

the  making  such  lease  or  grant,  and  not  a  coniinnalion  of  the  estate 
itself  («).  * 

'lliiis,  where  a  l)i?hop  made  a  lease  to  the  second  of  il/oy,  which 
was  coiiCinncil  the  thinl  of  Mat/^  and  sealed  the  fourth  of  xMat/j  this 
was  held  a  i;ood  confirmation  (6). 

Yet  it  hath  been  holden  on  the  contrary,  tliat  if  a  confirmation  be 
made  and  delivered  before  the  yrant  or  lease  be  confirmed,  that  this  is 
not  a  good  confirmation  ;  and,  though  after  the  grant  or  lease,  the  deed 
of  confirmation  be  delivered  at;ain,  yet  that  will  not  make  it  good  ;  for 
that  it  was  a  deed  by  the  first  delivery,  and  the  second  delivery  will  not 
make  it  good  as  an  assent,  })ecause  the  assent  ought  to  be  by  deed,  and 
the  first  delivery  was  void  ;  but  that  confirmation  may  be  made  before 
the  grant  or  lease  be  confirmed,  the  other  cases  are  express  (r). 

Jf  a  bishop,  parson,  or  any  other  sole  ecclesiastical  corporation,  make 
a  lease  for  years,  which  needs  confirmation,  his  confirmation  ought  to 
be  niiide  in  the  life  and  during  the  incumbency  of  the  lessor,  for  after 
his  death,  resignation,  deprivation,  or  other  amotion,  the  lease  is  be- 
come void  for  want  of  confirmation  ;  aud  then,  confirmation  made  af- 
ter cannot  revive  it,  though  it  be  made  in  the  vacation  before  any 
successor  comes  in  (d). 

Kut  if  a  parson  make  a  lease  for  years,  which  is  not  confirmed  by  the 
bishop  or  patron,  then  in  being,  but  by  the  succeeding  bishop  and 
succeeding  patron,  this  is  a  good  lease,  and  shall  bind  the  successor. 

Section  XII.     Of  Leases  by  Trustees  of  Charities, 

Leases  of  charity  lands  are  under  the  peculiar  cognizance  of  the 
Court  of  Chancery,  and  where  a  lease  is  made  by  trustees  at  an  under- 
value, l)y  collusion  between  them  and  the  lessee,  the  court  can  make  a 
decree  not  only  against  the  trustees,  but  also  against  the  lessee  for  the 
surplus  value  (r). 

The  mode  of  granting  leases  of  charity  lands  is  sometimes  prescribed 
by  the  founder,  as  that  the  term  shall  not  exceed  twenty-one  years, 
that  no  fine  shall  be  taken,  <<rc.  and  then  the  terms  of  the  power  must  l)e 
strictly  jiursucd  :  and  sometimes  power  is  given  to  the  trustees  to  make 
le;ises  generally,  in  which  case  they  have  a  power  both  in  law  and 
equity,  either  to  take  fines  or  reserve  rents,  as  is  most  beneficial  for  the 
charity  (/  ).  \V'herc  there  is  no  power,  the  trustees  must  be  guided 
by  the  general  principles  of  the  court,  which  ^^ill  take  care  that  a  rea- 
sonable discretion  is  exercised  nr). 

"Where  the  rides  of  the  foundation  directed  that  no  lease  should  be 

^o)  nac.  Abr.  fit.  Lf.Mcs    'fl.  n>  4.  (6)  Ibid.  (c)  Il.i  11. .0 


T4  Of  Leases  hi/  Trustees  of  Charilies.     [Chap.  111. 

granted  for  more  than  twenty-one  years,  and  that  at  the  old  rent,  tak- 
ing a  fine  of  t\\  o  years'  value  ;  a  lease  for  twenty-one  years  at  the  old 
rent,  w  ith  a  covenant  by  repeated  renewals  to  make  it  up  sixty  years, 
was  decreed  upon  certain  conditions,  to  be  confirmed  for  twenty-one 
5'ears  from  the  last  renewal,  but  the  covenant  for  renewal  was  declared 
void,  as  rendering  the  lease  no  less  prejudicial  than  an  actual  lease  for 
sixty  5'ears  [a). 

A  college  restrained  by  its  constitution  from  making  leases,  other 
than  for  twenty-one  years,  at  a  rack  rent,  made  an  entry  in  their  audit 
book,  recommending  it  to  their  successors  to  renew  a  particular  lease 
at  less  than  the  rack  rent,  the  tenant  having  made  great  iuiprovements. 
The  court  refused  to  decree  the  renew  al,  censuring  the  parties  who  had 
signed  the  order  for  a  breach  of  the  college  statutes  [b). 

Where  long  leases  of  charity  lands  have  been  procured  upon  terms 
very  inadequate  to  their  fair  value,  the  court  has,  in  several  instances 
interfered  to  annul  them,  and  to  bring  the  lessees  to  a  just  account  of 
the  rents  and  profits  (c). 

An  alienation  for  ninety-nine  years  of  a  charity  estate,  if  it  be  a  mere 
Imsbandry  lease  and  without  consideration,  is  a  lease  which  the  court 
will  not  permit  to  stand,  unless  it  is  shewn  to  be  fair  and  reasonable, 
and  for  the  benefit  of  the  charity  [d).  A  long  lease  of  a  charity  estate 
is  prima  facie  a  breach  of  trust,  and  a  proof  of  the  circumstances  that 
make  it  a  provident  administration  is  thrown  on  those  who  take  such  a 
lease  [e).  Therefore,  trustees  of  a  charity  cannot  in  general,  unless 
specially  empowered,  grant  a  lease  for  seventy  years,  except  for  the 
purpose  of  building  (/)  ;  for  a  case  may  occur  in  which  the  property 
cannot  be  made  beneficial  without  building,  and  the  trustees  may  have 
no  fund. 

In  1716  the  trustees  of  a  charity  granted  a  lease  of  lands,  theretofore 
let  at  31Z.  per  annuw,  for  nine  hundred  and  ninety-nine  years,  in  con- 
sideration of  500/.  to  be  laid  out  in  improvements,  and  of  4/.  per  an- 
num  additional  rent.  The  court  considered  this  to  be  a  sort  of  perpe- 
tuit}%  destructive  to  the  charity  estate,  and  therefore  decreed  the  lease 
to  be  given  up,  !)ut  as  the  tenant  had  lately  laid  out  600/.  in  improve- 
ments, it  w  as  ordered  that  he  should  have  just  allowances  made  him  in 
the  account  wliicli  was  directed  [g). 

It  is  luid  down  in  a  recent  case  (A),  that  neither  a  lease  of  charity 
land  for  ninety-nine  years,  as  a  mere  husbandry  lease,  upon  terms  and 
at  a  rent  adapted  to  a  lease  for  twenty-one  years  ;  nor  a  building  lease 
of  nine  hundred  and  ninety-nine  years  upon  an  expenditure,  commensu- 
rate to  a  term  of  ninety-nine  years,  can  be  supported. 

But  a  lease  of  charity  of  land  for  eighty  years,  was  supported  as  t» 

(a)  2  Vern.  110.  (b)  1  P.  Wms.  055.  (c)  6  Ves.  .tun.  452.    W  Ves.  Jun  5i>. 

('i)  Il'id.  (t)l\)i4.  (f)  13  Ves.  Jun.  565. 

't'>  C  Ves.  JuD.   152.  (h)  17  Ves.  Juu.  iU3. 


Sect.  XIH.]     Of  Ijcascs  hy  marrud  Women y  iVr.  T^ 

the  interest  of  asub-Icssec,  who  had  given  a  fair  con.sideral  ion,  and  hail 
110  notice,  except  that  the  estate  holonpjed  to  a  charity  (a)  ;  the  court 
observini;  that  its  jeclin^s  upon  tlic  ahiisc  of  a  charily  rstatc  niuf-t  not 
(Jury  it  Ixyond  what  is  just,  even  a^aiuit  tliose  who  arc^uilfy,  niuch 
less  against  other  persons  ;  and  upon  that  ground  the  decree  should  be 
mollified  with  ret^ard  to  the  interest  of  Kub-lcs«ces  having  given  a  fair 
consideration;  nurely  directing;  them  to  pay  the  rent  to  other  persons 
than  tiiosc  to  whom  they  bad  contracted  to  pay  it.  The  interests  of 
hose  persons  may  be  very  fair,  as  !)etween  them  and  those  from 
whom  they  take  ;  and  the  rebef  in  these  cases  is  to  be  adapted  to  the 
conduct  of  the  parties,  as  the  court  tinds  them  respectively  to  liave 
-.ctcd  fairly  or  not,  towards  the  trust. 


•*« 


Sectio.n  XT II.     Of  Leases  hy  married  JVomeii  ;  and 
Husbands  siistd  in  right  of  them. 

By  the  common  law,  if  a  husband  seised  of  lands  of  inheritance  iu 
right  of  his  wife,  make  a  lease  thereof  by  imlenlure  or  dccl-poll, 
reserving  rent,  this,  though  voidal)le,  will  be  good,  unless  the  wife  by 
some  act  after  the  husband's  death  shews  her  dissent  thereto;  for  if  she 
accept  rent  which  becomes  due  after  his  death,  the  lease  is  t]ierel)y  be- 
come absolute  and  unavoidable. 

If  a  w  idow  chooses  to  avoid  such  lease,  notwithstanding  her  having 
joined  therein,  then  it  is  so  absolutely  defeated  ab  iuiiio  as  to  her,  that 
the  may  plead  non  dcmis'U  ;  because,  as  to  any  interest  that  passed  from 
l»er  she  did  not  demise,  nor  in  truth  had  ariy  power  to  contract,  but  the 
whole  interest  piissed  from  the  husband,  and  the  lessee  is  in  merely  by 
virtue  of  the  husbantl's  contract;  and  yet  because  the  lessee,  by  his 
acceptance  of  such  lease,  admitted  them  both  to  have  power  to  join 
therein,  he  must  accordingly  during  the  coverture  declare  of  the  lease 
by  them  both  as  an  essential  part  of  the  description  of  the  lease  where- 
by he  makes  title  {h). 

But  the  indenture  or  deed-poll,  w  hcre])y  such  lease  was  made,  being 
no  essential  i)art  either  of  the  description  or  lea'^e  itself,  because  the 
husband,  during  the  coverture,  might  Iiave  made  it  by  parol  only; 
therefore  it  is  not  necessary  nor  usual  for  the  lessee  in  his  declaration  to 
make  any  mention  thereof  (r), 

•  A  lease  made  by  husband  and  w  ife  of  tlie  lands  of  the  wife,  and  deli- 
vered by  letter  of  attorney  in  both  their  names,  w  ill  support  a  declara- 
tion in  ejectment  on  a  lease  by  the  husband  only  ;  for  the  delivery  by 

(n)  17V*?  .'u'l  i"*  *''•'  US'"    Abr  lit  T  eitoi  (T.  I.)  ;.->  Ibirt. 


76  Of  Leasts  ly  married  Women  ;  and    [Chap.  III. 

attorney   being  void  as  io  the  wife,  it   is  the  lease  of  the  husband 

only  (fl). 

But  if  the  husband  and  wife  join  in  a  lease  for  years  by  parol  of  the 
wife's  lands  rendering  rent,  or  if  the  husband  solely  make  such  parol 
lease,  rendering  rent,  this  determines  absolutely  by  his  death,  so  that 
no  acceptance  of  rent,  or  other  act  done  by  the  wife,  will  prevent  its 
avoidance ;  for  a  lease  for  years  being  an  immediate  contract  for,  or 
disposition  of  the  land  itself,  if  the  same  appears  in  writing  duly  exe- 
cuted, so  that  there  can  be  no  variation  or  deviation  therefrom  attempt- 
ed by  the  lessee  after  the  husband's  death  ;  the  law  so  far  gives  counte- 
nance to  such  lease  for  the  encouragement  of  farmers  and  husbandmen, 
that  the  same  shall  continue  in  force  till  the  wife's  actual  dissent  or  dis- 
agreement thereto  ;  but  because  there  can  be  no  such  certainty  of  the 
terms  of  a  parol  lease,  when  nothing  appears  in  writing  to  manifest 
them,  therefore  they,  like  other  charges  of  the  husband,  fall  off  and 
drop  with  his  estate  or  interest  therein  {b). 

If  the  husband  and  wife  make  a  lease  for  years  of  the  wife's  land, 
without  reservation  of  any  rent,  yet  it  hath  been  adjudged  that  this  is 
a  good  lease  by  them  both  during  the  coverture,  and  that  the  wife, 
after  the  husband's  death,  may  affirm  the  same  by  acceptance  of  fealty, 
or  bringing  an  action  of  waste:  so  that  the  reservation  of  rent  is  not 
essential  to  the  existence  or  continuance  of  such  lease  after  the  hus- 
band's death,  but  only  a  writing  attesting  the  same,  and  the  wife's 
allowance  and  approbation  thereof;  for  as  the  husband  made  such 
lease  at  first  without  any  reservation  of  rent,  so  the  wife,  if  she  thinks 
fit  may  continue  the  lessee  in  possession  after  his  death  upon  the  same 
terms  (r). 

A  husband  seised  in  right  of  his  wife  cannot  grant  copies  in  his  own 
name,  but  the  wife  ought  to  join  (d). 

But  if  a  husband  seised  of  a  copyhold  in  right  of  his  wife,  make  a 
ler.se  not  warranted  by  the  custom,  it  is  a  forfeiture  of  the  estate  during 
the  life  of  the  hfisband  only  ;  for  it  is  not  a  continuing  detriment  to  the 
inheritance,  or  such  an  act  as  tends  to  the  destruction  of  the  manor,  in 
which  case  it  would  bind  the  inheritance  of  the  wife  after  the  husband's 
death  {c). 

A  husband  letting  copyhold  lands  of  which  he  is  seised  in  right 
of  his  wife,  by  indenture,  will  not  destroy  the  custom  of  demising 
by  copy,  because  the  wife  may  enter  after  his  death  and  avoid  such 
lease  (  /"). 

A  woman  guardian  in  socage,  marries  and  joins  with  her  husband  by 
indenture,  in  making  a  lease  for  years  of  the  ward's  land,  yet  after  her 
husband's  death  she  may  avoid  the  same  in  right  of  the  infant  whose 

(a)  Cro.  Jac.  BIT.  (6)  Bac.  Abr.  ut  ante.  {c)  Bac.  Abr.  tit.  Leases,  (C.  1.) 

(d)  Cro.  Jac.  99.  (t)  Bac.  Abr.  utante,  &  Cro,  Car.  7.  (/)  Ibid-  Cro.  EUz.  4S9. 


Sect.  Xni.]     llnslninds  seised  in  riicht  of  Ihtm.  ',', 

guanliaii  hIic  still   conlimies  to  be,  an?l  to  \\  liom,  \s\\cx\  he  comes  of 
ai;e,Flic  imisl  he  .uc(. uiilahle  for  the  profits  [a). 

A  hiisl)aiul,  in  whom  a  long  term  of  years  was  vested  in  right  of  liis 
wife,  made  an  inulcr-lease  for  the  ten  years',  and  upon  honoring 
money  of  the  lessee,  covenanted  to  grant  him  another  lease  after  the 
end  of  the  ten  years,  and  to  continue  during  thetiuR'he  had  any  right, 
but  died  l)efore  he  made  sucii  lease  ;  it  was  decreed  to  be  a  good  dis- 
position of  the  term  in  erpiity  (A). 

Touching  leases  made  by  liusband  and  wife,  pursuant  to  the  statutt: 
32  //.  8.  r.  28.  [concerning  which  sXaiwia  vide  ant i\\  the  husband  m.iy 
at  this  day,  without  fine  or  recovery,   make  leases  of  the  lands,  tene- 
luents,  or  hereditaments,  wliercof  he  hath  any  estate  of  inheritance  in 
fee-simple   or  fee-tail   in   right  of  his  wife,  made   l)efore  or  after  tlic 
coverture,  so  as  there  be  in  such  leases  observed  the  conditions  or  limi- 
tations before    recpnred  in  the  leases  made  by  tenant  in  tail  ;  and  so 
that  the  wife  join  in  the  same  deed,  and  be  made  p  irly  thereunto,  and 
seal  and  deliver  the  same  deed  herself  in  person  :  for  if  a  man  and  liis 
wife  make  a  letter  of  attorney  to  another  to  deliver  the  lease  upon  the 
land,  this  lease  is  not  a  good  lease  from  the  wife  warranted  by  the  stat- 
ute ;  and  yet  then,  as  in  other  like  cases,  of  leases  not  warranted  by  the 
statute,  it  is  a  good  lease  against  the  husband.     When  the  lease  is  such 
an  one  as  is  warranted  by  the  statute,  it  binds  tlic  hnsl)and  and  wife 
both,  and  the  heirs  of  the  wife  ;  but  if  it  be  an  estate-tail,  it  doth  not 
))ind  the  donor  nor  him  in  remainder  (r). 

Hi  sband  and  Mife,  the  husband  purchased  land  to  him  and  his  wife, 
and  their  heirs,  and  aflcruards  he,  without  hjs  w ife,  lets  tiiiii  land  for 
sixty  years,  if  they  should  so  long  live,  rendering  280/.  per  arm.  rent  at 
the  two  usual  feasts,  during  the  term,  then  the  husband  dies,  and  if 
this  lease  should  bind  the  wife  by  the  32  JI.  8.  r.  28.  was  the  question  ; 
»nd  it  was  held  by  three  justices  that  it  should :  for  the  wile  is  appoint- 
ed to  join  only  when  she  hath  the  sole  inheritance  by  the  appointment 
of  the  rent  to  be  reserved  to  the  heirsof  the  wife,  and  not  wlien  she  hath 
a  joint-estate,  as  in  this  case  ;  and  tlicn  clearly  by  the  body  of  the  act, 
the  lease  by  the  hueband  solely  is  good,  and  the  proviso  does  not  extend 
to  it ;  in  truth,  the  lease  determined  by  the  death  of  either  of 
them  [d). 

Where  a  feme-covert  has  for  many  years  been  separated  from  her 
husband,  and,  during  that  time,  has  received  for  her  separate  use  the 
rents  of  her  own  proj)erty,  which  accrued  to  her  by  devise  after  the 
separation,  she  shall  be  presumed  to  receive  tlie  rents,  and  acknowledge 
the  tenancy,  by  her  husband's  authority  (r). 

A  husband  possessed  ofaterm,  in  riglit  of  his  wife,  may  dispose  of 
the  w  hole  or  any  part  of  it. 

(a)  Cro.  £112.  453.  {bj  U  ."Hod.  43.  (c)  g^ep   Touch    2?0 

(d)  Bac   Abr.  Ut   Le«»es.  fC.  I  ;  f,;  1  Taunt-  367 

12 


78  Of   Leases  by  married  IVomcn,  cSr.     [Chap.  IIL 

So,  be  may  make  a  lease  to  commence  after  his  death,  and  it  will  be 
good,  though  the  wife  survive ;  for,  having  an  interest  to  dispose  of  in 
liis  life,  he  mii^ht  dispose  of  all  the  term,  and  it  should  hind  the  ferae  ; 
so,  when  he  halh  disposed  by  an  act  executed  in  his  life  of  the  interest 
of  the  term,  ajid  liath  created  a  term  in  interest,  this  is  as  good  as  if 
he  had  granted  all  the  term  {a). 

But,  if  the  Mifc  had  only  the  possibility  of  a  term,  the  husband  can- 
not dispose  of  it :  as  if  there  be  a  lease  to  a  husband  and  wife  for  their 
lives,  and  afterwards  to  the  executor  of  the  survivor,  the  husband  can- 
not grant  this  executory  interest  (/;).  Therefore  he  cannot  grant  a  lease 
to  endure  beyoiul  both  their  lives. 

It  is  now  settled  that  a  man  possessed  of  a  term  of  years  in  right  of 
his  wife  as  executrix  of  her  former  husband  has  power  to  grant  and 
convey  the  same:  for  the  husband  may  administer  in  right  of  his  wife 
without  her  consent,  though  she  cannot  administer  -without  the  consent 
of  her  husband ;  and  if  the  husband  can  administer, Jwrc  ttxons,  with- 
out her  consent,  it  is  incident  to  the  power  of  administration  tosell  or 
dispose  of  a  term  of  years  (c). 

If  the  husband  possessed  of  a  term  for  seventy  years  in  right  of  his 
uife,  make  a  lease  of  those  lands  for  twenty  years,  to  begin  after  his 
death,  this  is  good  and  shall  bind  the  wife  ;  because  the  term,  being  but 
a  chattel,  he  had  power  to  dispose  of  it  wholly,  and  by  consequence 
may  dispose  of  any  lesser  interest  thereout  as  he  thinks  fit,  and  this 
being  a  present  disposition,  which  he  cannot  revoke,  binds  the  interest 
of  the  lands  ijnmediately,  though  it  takes  not  eiiect  in  possession  till 
after  his  death :  thisdilfers  therefore  from  a  devise  of  such  terra,  or 
any  part  thereof  by  the  husband,  by  his  will ;  for  tiiat  not  taking  cliect, 
nor  binding  the  interest  at  all  till  after  his  death,  comes  too  late  to  pre- 
vent the  operation  of  law,  which,  at  the  instant  of  death,  immediately 
casts  it  upon  the  wife  surviving,  and  so  defeats  and  destroys  the  opera- 
tion of  the  devise  {d). 

But  as  to  the  residue  of  the  term,  whereof  the  husband  makes  no 
disposition  in  his  life-time,  the  wife,  if  she  survives,  will  be  entitled  to 
it;  because  as  to  that,  the  iaw  is  left  to  take  place,  as  it  would  have 
done  for  the  ^\  hole,  if  he  had  not  prevented  it  by  such  his  disposition 
of  part  (e). 

Yet  if  the  husband  demise  for  part  of  the  Avife's  term,  rendering 
rent,  the  rent  shall  go  to  his  executor  or  administrator,  though  the  wife 
survive  (/). 

Yet  if  the  husband  had  granted  away  the  whole  term  upon  condition 
and  died,  though  the  condition  were  afterwards  broken,  and  his  execu- 
tors entered  for  breach  thereof,  the  wite  would,  notwithstanding,  be 

(a)  Com.  Dig.  tit.  Baron  &  Feme  (E.  2.)  1  Cro.  Eliz.  287.  (6)  Com.  Dig.  tit.  ut  ant?.. 

(t>  3  WiU.  277.  2  Bl.  R.  sui,  a.  c.  (dj  Bac.  Abr.  tit.  Baron  k  Fepie  (C.  2.) 

CO  Ibid.  if)  1  Vern.  7.  18.    3  Att.  135. 


Sect.  \IV.  I      Of    IjiHsishif  Infdnls  (tnd  iuKirdntiis.  79 

forcvei  I);irrcil  to  claim  any  iiitirc.t  in  tlj(;  siiid  term  ;  l)ccau.-r  tlitr« 
Avas  a  tola!  (Jispos^itian  Ihcrcof  hy  the  iuihl>an(l  in  his  lif('-tin)i',  and  the 
breach  or  Uf'H-perfonnance  of  the  condition  uas  perfcclly  conlini^cnt 
and  unccTtaiii :  Insidcs  that,  the  breach  of  the  condition  happened  not 
till  after  his  d<alh,  and  so  the  disposition  continued  perfect  and  uniii- 
terriipled  diirinj;  his  life  ;  for  if  tlie condition  had  been  broken  diiiinq; 
his  life,  and  he  himself  had  entered  for  breach  thereof,  it  mi^ht  be  a 
great  (J- us( ion  if  the  uife  survivini;  pjiould  not  have  the  term  after  his 
deaUj,  because  l»y  his  re-entry  for  the  comlition  broken  he  is  restored  to 
tlie  whole  term  in  statu  t/iio,  and  then  beinij  possessed  of  it  in  right 
of  his  uife  as  he  uas  before,  it  seems  but  reasonable  that  the  wife 
should  have  it,  if  sl.-c  survived  the  husband,  as  she  would  have  had  if 
no  such  disposition  had  been  juade,  since  that  tli.-posilion  is  now  de- 
feated and  gone  (</). 


Section  XIV.     Of  Leases  hy  Infants  and  Guardians. 

With  respect  to  the  power  that  an  infant  possesses  to  grant  a  lease 
that  shall  be  binding,  the  cases  in  the  books  are  soniewliat  contradicto- 
ry, and  the  point  is  hitherto  unsettled.  The  bcllcr  opinion  however 
seems  to  be,  that  leases  made  by  infants  are  not  absolutely  void,  but 
voidable  on  their  attaining  their  majority. 

"  All  gifts,  grants,  or  deeds,  made  by  infants,  by  matter  in  deed,  or 
in  writing,  which  do  take  efiect  by  delivery  of  liis  hand,  are  voidable 
by  himself,  by  his  heirs,  and  by  those  who  have  his  estate  (A)."  The 
words  "  do  take  efiect,"  are  the  essential  part  of  the  definition,  and  ex- 
clude letters  of  attorney,  or  deeds  which  delegate  a  mere  power  and 
convey  no  interest  (r) . 

All  the  books  agree,  that  if  an  infimt  make  a  lease  for  years,  he  cjfti- 
not  plead  nonrst  factum,  but  must  avoid  it  by  pleading  the  special  matter 
of  his  infancy  ;  which  favours  the  opinion  of  those  who  hold,  that  the 
lease  is  not  absolutely  void  ;  for  if  it  were  absolutely  void,  there  is  no 
good  reason  Mhy  he  shoxdd  not  plead  iion  est  factum,  as  a  feme-covert 
certainly  may  do  in  such  a  case,  whose  lease  is  absolutely  void,  so  that 
no  acceptance  of  rent  after  the  husband's  death  can  make  it  good  (</). 

An  infant  made  a  lease  for  years,  and  at  fidl  age,  said  to  the  lessee, 
"  God  give  you  joy  of  it ;"  this  was  holden  by  Mead  a  good  aflirmation 
of  the  lease  ;  for  this  is  a  usual  compliment  to  express  one's  assent  and 
approbation  of  what  is  done  (r). 

What  seems  decisive  upon  the  question  is,  that  "  the  lessee  can  iu 
no  case  avoid  thelease,on  account  of  the  infancy  of  the  lessor,"  which 

la)  Bac.  Al>r.  tit.  Ru«n  (i  Kemp  [C.  2  )  (b)  Perk,  f .  li  (r^  rj  Burr  1802 

'•i)  Bic.  Abr.  tit.  EilafeifU  "I  (,,  i;,ij, 


80  Of  Leases  hy  Infants  and  Guardians.     [Chaj).  III. 

shews  it  not  to  be  void,  l)iit  voidable  only  ;  and  it  is  better  for  infants 
that  they  should  Iiave  an  election  {a). 

It  has  long  been  settled  that  "  an  infant  may  make  a  lease  without 
rent  to  try  his  title."  In  truth,  very  prejudicial  leases  may  be  made, 
though  a  nominal  rent  be  reserved,  and  there  may  be  most  beneficial 
considerations  for  a  lease,  though  no  rent  be  reserved  (6). 

The  court  of  Chancery  will  decree  building  leases  for  sixty  years  of 
infants'  estates,  when  it  appears  to  be  for  their  good  (r). 

AVhere  an  infant  makes  a  lease  for  years,  reserving  rent,  and  the 
lessee  enters,  the  infant  hath  election  to  allow  him  to  be  his  tenant,  or 
to  he  his  disseisor,  Avhichever  is  most  to  his  advantage  ;  so,  where  one 
enters,  and  claims  as  guardian,  and  occupies,  the  infant  may  allow  him 
to  be  either  disseisor,  or  accomptant,  whichever  shall  be  for  his  best 
advantage  (d). 

In  case  there  be  no  testamentary  guardian  nor  a  mother,  if  the  in- 
fant has  any  socage  land  and  is  of  the  age  of  twelve  if  female,  or 
fourteen  if  male,  he  or  she  is  allowed  to  choose  his  or  her  guardian, 
as  is  frequently  done  on  circuit,  and  is  the  constant  practice,  and 
what  the  court  of  Chancery  frequently  calls  on  infants  to  do ; 
though  this  is  still  liable  to  any  reasonable  objection  made  to  such 
choice  (e). 

A  guardian  in  socage  may  make  leases  for  years  in  his  own  name,  and 
the  lessee  may  maintain  ejectment  thereupon  (/) ;  for  this  guardian  is  a 
person  appointed  not  by  any  special  designation  of  the  party,  but  by 
the  wisdom  of  the  law,  in  respect  of  the  lands  descended  to  the  infant, 
so  that  where  no  lands  descend,  there  can  be  no  such  guaniian  (e)  : 
and  his  office  originally  was  to  instruct  the  ward  in  the  arts  of  tillage 
and  husbandry,  that  when  he  came  of  age  he  might  be  the  better  able 
to  perform  those  services  to  his  lord,  whereby  he  held  his  own  land; 
ai*d  though  the  office  now  be  in  some  measure  changed,  as  the  nature 
of  the  tenure  itself  is  since  the  time  that  the  socage  tenants  bought  off 
their  personal  labours  and  services  with  an  annual  rent  to  the  lord,  yet 
it  is  still  called  socage  tenure,  and  the  guardian  in  socage  is  still  only 
where  lands  of  that  kind  (as  most  of  the  lands  in  England  now  are) 
descend  to  the  heir  within  age :  and  though  the  heir  after  fourteen  may 
choose  his  own  guardian,  who  shall  continue  till  he  is  twenty-one,  yet 
as  Avell  the  guardian  before  fourteen,  as  he  whom  the  infant  shall 
think  fit  to  choose  after  fourteen,  are  both  of  the  same  nature,  and 
have  the  same  office  and  employment  assigned  to  them  by  the  law,  w  ith- 
outany  intervention  or  direction  of  the  infant  himself ;  for  they  were 
appointed,  because  the  infant,  in  regard  of  his  minority,  was  supposed 
incapable  ofmanaging  himself  and  his  estate,  and  consequently  derive 

.a)  3  Bun.  1806.  (i)  Ibid.  (c)  2  Vern.  221.  (d)  Cro.  Car  306. 

(V^  2Tos.  375:  (•/)  Bac  Abr.  Uh  Lease?,  (I.  9.^  (?)  Cro  Jac.  9^- 


S(Ct.  Xry.]  Of  Leases  by  Infants  (Did  Ctuardinns.  H] 

till  ir  authority,  not  from  flic  iiifaiit,  hut  from  tin- law  ;  and  that  is  tho 
riason  tlicy  transact  all  affairs  in  llitir  own  nanu;,  and  not  in  the  name 
of  the  infant,  as  llicy  would  l)c  obiiti^cd  to  do,  if  their  authority  wrre 
derived  from  him.  Indeed,  if  their  authority  were  derived  from  him, 
it  wouUl  Ity  no  means  answer  the  intention  of  the  law  in  apjiointin;: 
tliem  ;  for  then  allactsdone  by  virtue  of  such  derivative  authority  coidd 
be  of  no  more  force  than  if  done  by  the  jierson  himself  who  i;avc  that 
authority,  since  none  can  communicate  more  power  to  another  than 
he  lias  himself ;  and  that  would  invalidate  all  their  contracts,  and 
make  them  savour  of  the  same  imbecility  as  if  made  by  the  infant 
himself. 

Therefore,  to  enable  tliem  to  take  especial  care  of  the  infant  and  liis 
aflairs,  the  law  has  invested  them,  not  with  a  ban  cnithorit;/  only,  but 
also  with  tin  interest,  till  the  i^uardianship  ceases  ;  and  to  prevent  their 
abuse  of  this  authority  and  interest,  the  law  has  made  them  accounta- 
ble to  the  infant,  either  when  he  comes  to  the  age  of  fourteen  years,  or 
at  any  time  after,  as  he  thinks  lit  ;  and  therefore  their  authority  and 
interest  extend  only  to  such  things  as  may  be  for  the  benefit  and  ad- 
vantage of  the  infant,  ami  whereof  they  may  give  an  account. 

From  what  has  been  said,  it  appears  that  a  guardian  in  socage  Iiath 
not  only  a  bare  authoritij,  but  an  interest  in  the  lands  descended,  and 
therefore  during  that  time  may  make  leases  for  years  in  his  own  name, 
as  any  other  wlio  hath  an  hiterest  in  lands  may  do  ;  for  he  is  <]uasi 
dominus pro  trinporc.  If  he  makes  leases  for  years  to  continue  beyond 
the  time  of  his  guardianship,  sucli  leases  seem  not  to  be  absolutely  void 
!)y  the  infant's  coming  of  a;j:e,  but  only  voidable  by  him,  if  he  thinks  fit; 
for  they  are  not  derived  barely  out  of  the  interest  of  the  guardian,  or  to 
be  measured  thereby,  but  take  elTect  also  by  virtue  of  his  authority, 
"uhich,  for  tlie  time,  was  general  and  absolute  ;  and  therefore  all  lawful 
acts  done  during  the  continuance  of  that  authority,  are  good,  and  may 
suljsist  after  the  authority  itself,  by  which  they  were  done,  is  deter- 
mined, and  consequently  the  infant,  v  hen  he  comes  of  age,  may  by  ac- 
ceptance of  rent,  or  other  act,  if  he  thinks  fit,  make  such  leases  good 
and  unavoidable  («). 

A  testamentary  guardian,  or  one  appointed  pursuant  to  the  statute 
12  Car.  2.  c.  24.  5.  8.  y.  10.  11.  is  the  same  in  ollicc  and  interest  as  a 
guardian  in  socage. 

But  a  guardian  by  nurture  cannnot  make  any  leases  for  years,  either 
in  his  own  name,  or  in  the  name  of  the  infant,  for  he  hath  only  the 
careof  the  person  and  education  of  the  infant, and  hath  nothing  to  do 
with  the  lands  merely  in  virtue  of  his  olllce  ;  for  such  guanlian  may  be, 
though  the  infant  has  no  lands  at  all,  which  a  guardian  in  socage  can- 
not (6).  But  such  guardian,  it  seems,  may  make  leases  at  w  iJI.  Though 

(a)  Ba-".  A.fcr.  tit.    •  J  aa.Cf ,"  'I    1  )  C^)  fjitl- 


o2      Of  Leases  hy  Afotigagors  and  Mortgagee s.  [Cliap.  III. 

every  guardian,  except  a  guardian  in  socage,  is  but  tenant  at  will,  and 
by  consequence  cannot  make  a  lease  for  any  certain  time  or  number  of 
years ;  yet  if  a  lease  be  made  by  such  guardian,  the  lessee  is  estopped 
to  say,  that  being  only  tenant  at  will,  he  had  no  power  to  make  the 
Jease  («). 

•  A  lease  renewed  by  a  guardian  for  an  infant's  benefit,  shall  follow 
the  nature  of  the  original  lease  :  and  in  general  a  guardian  or  trustee 
shall  not  alter  the  nature  of  the  infant's  property,  so  as  to  change  the 
right  of  succcsi-ion  to  it  in  case  of  the  infant's  death,  unless  by  some 
act  manifestly  for  the  advantage  of  the  infant  at  the  time  {b). 

A  devise  to  a  person  as  guardian,  that  he  may  "  receive  set  and  let" 
for  his  ward,  gives  him  an  authority  only,  and  not  an  interest  (c). 

Section  XV.    Of  Leasts  hy  Executors  and  Administrators. 

Executors  and  administrators,  as  they  may  dispose  absolutely  of 
tenns  of  years  vested  in  them  in  right  of  their  testators,  or  intestates ; 
so  may  they  lease  the  same  for  any  fewer  number  of  years,  and  the  rent 
reserved  on  such  leases  shall  be  assets  in  their  hands,  and  go  in  a 
course  of  administration  {d). 

If  administration  be  gv^witd  gcneralli/  to  one  during  the  minority  of 
an  infant  executor,  the  grantee  has  authority  to  make  leases  of  any 
term  vested  in  such  infant,  which  shall  be  good  till  he  comes  of  age  ; 
and,  as  it  lias  been  also  holden  by  some,  till  he  avoid  them  by  actual 
entry  {e). 


Sectioa'  XVI.    Of  Leases  hy  Mortgagors  and  Mortgagees. 

The  mortgagor  has  no  po\ver  of  making  leases  to  bhid  the  mortga- 
gee, but  he  may  make  leases  which  will  bind  his  equity  of  redemp- 
tion. 

M'hcre  the  mortgagor  is  himself  the  occupier  of  the  estate,  he  may 
be  considered  as  tenant  at  will  :  J)ut  he  cannot  be  so  considered  if  there 
be  an  under-tenant,  that  is  a  tenant  in  possession  under  a  lease  prior  to 
the  mortgage  ;  for  there  can  be  no  such  thing  as  an  under-tenant  to  a 
tenant  at  will  ;  the  demise  itself  would  amount  to  a  determination  of 
the  will  (/). 

If,  therefore,  a  mortgagor,  who  continues  in  possession  by  consent 
of  the  mortgagee,  makes  a  lease  for  years,  and  the  lessee  enter,  claim- 
ing nothing  but  his  lease,"  he  is  not  a  disseisor,  but  on  payment  and 
acceptance  of  his  rent,  a  tenant  at  will ;  and  if  the  mortgagor  enter 

(")  8  Mod.  312.  (5)3  P.  Wms.  10!.  U  n.  1.  («)  Cro.  Eliz.  r.78. 

•.d)  Bac.  Aljr.  tit.  "Leases,"  [\.  7.)        (<;)  6  Co   67o.  Bac.  Ab.  "Leases,"  (l. '7.)         (/)  Doug-  2^7 


vSect.  XVI.]  Of  Leases  hj/  Morlgni>;ors  and  Mort^a^ers.     03 

after  the  expiration  of  the  Jea«tc,  he  shall  he  tenant  at  \\  ill  again  t<i  the 
mortgaqce  ;  and  his  acl.s,  hcinj,' by  permission  of  the  niurt^agcc,  fhail 
not  turn  toliis  prejudice  («). 

But  if  a  niortgaijc  be  made  uitli  a  proviso  and  agreement  hctucen 
the  parties,  lliat  the  mortgagee,  his  heirs  and  assigns,  •' FhiUI  not 
internjcddU;  uith  the  actual  possession  of  the  premises,  or  perception 
of  the  rents,"  until  default  of  payment,  the  mortgagor  is  a  tenant 
atsuifcrance  to  the  mortgagee,  and  not  a  tenant  at  ^\  ill,  as  he  would 
have  been  on  a  covenant  that  he  should  take  the  prolits  till  default  of 
payment  (J)),  » 

indeed  the  legal  interest  of  a  mortgagor  in  possession,  lias  been  held 
to  he  iiiferior  to  that  of  a  mere  strict  tenant  at  will  (().  However,  as  to 
what  in  strictjiess  is  the  interest  of  a  mortgagor,  after  the  usual  time 
given  for  the  payment  is  expired,  the  estate  becomes  absolute  in  the 
mortgagee  at  law. 

As  all  leases,  or  other  interests  in  the  land,  created  by  the  mortga- 
gor, subsequently  to  tlie  mortgage,  and  before  the  foreclosure,  are  void 
against  the  mortgagee  ;  he  may  treat  the  tenants  under  such  leases,  or 
persons  claiming  such  interests,  as  trespassers,  disseisors,  and  wrong- 
doers (J),  or  nut,  at  his  election  ;  unless  where  the  acts  of  the  mortga- 
gor have  been  done  w  ith  the  permission  of  the  mortgagee.  '''^ 

If  the  mortgagee  permits  the  lessee  to  enjoy  his  lease,  the  mortgagor 
may  thenceforth  be  considered  as  a  receiver  of  the  rent,  or,  in  some 
sort,  a  trustee  for  the  mortgagee,  who  may  at  any  time  countermand 
the  implied  authority,  by  giving  notice  to  the  tenant  not  to  pay  the 
rent  to  the  mortgagor  any  longer  (r).  But  if  the  mortgagee  elects  the 
other  alternative  the  lessee  may  be  turned  out  by  ejectment  (7). 

Though  the  tenant  be  in  possession  under  a  lease  prior  to  the 
mortgage,  yet  the  mortgagee,  after  giving  notice,  is  entitled  to  the  rent 
in  arrear  at  the  time  of  the  notice,  as  well  as  to  wliat  sliall  accrue  af- 
terwards, and  he  may  distrain  for  it  after  such  notice  (^'). 

But  where  there  is  a  tenant  from  year  to  year,  and  the  landlord 
mortgages  pcniling  the  year,  the  tenant  is  entitled  to  six  months'  no- 
tice before  he  can  be  evicted  by  the  mortgagee  (/t). 

With  respect  to  leases  by  the  mortgagee,  he  cannot,  before  foreclo- 
sure of  the  equity  of  redemption,  make  a  lease  for  years  of  the  premi.-e? 
in  mortgage  to  bind  the  mortgagor  ;  unless  to  avoid  an  apparent  loss 
and  merely  in  necessity  (/). 

If  mortgagor  of  a  term  join  with  the  mortgagee  in  a  lease  for  a 
sliorter  term,  in  which  the  covenants  for  the  rents  and  repairs  are  only 
with  the  mortgagor  and  his  assigns,  and  the  interests  of  the  mortgagor 

(a)  Cro    Jac.  660.  (6)  Ibid   Cj?.  (0  Doug.  22. 

(d)  Pow.  oil  Mort.  23'     Pougl.  21.  .  (rl  1   All    $-^  /"IDou^.  S). 

(ji  Dous  ST'.'.  (^'  I  t!  R.  nr?.  ;i';  9.vo<  i. 


34     Of  Leases  hy  Mortgagors  and  Mortgagees.  [Chap.  III. 

and  mortgagee  become  extinguished  during  the  lease  by  the  reversion- 
er acquiring  their  estates,  still  the  mortgagor  may  maintain  an  actios 
of  covenant  against  the  lessee,  the  covenants  being  in  gross  {a). 

But  if  a  mortgagor  and  mortgagee  make  a  lease  in  ^vhich  the  cove- 
nants for  the  rent  and  repairs  are  only  with  the  mortgagor  and  his 
assigns,  the  assignees  of  the  mortgagee  cannot  maintain  an  action  for 
the  breach  of  these  covenants  on  stat.  32  //.  8.  c.  34.  because  tliey  are 
collateral  to  his  grantor's  interest  in  the  land,  and  therefore  do  not  run 
Avith  it  (6). 

'  A  court  of  equity  refused  on  bill  to  compel  an  assignee  of  a  term  in 
mortgage  to  discover  his  assignment  ;  the  object  of  the  lessor  in  re- 
quiring it,  being  to  make  him  liable  to  the  covenants  of  the  mortgagor, 
although  he  had  not  taken  actual  possession  of  the  premises.  The  Court 
dismissed  the  bill,  and  left  the  party  to  his  remedy  at  law  (c). 

But  in  a  subsequent  case,  where  one  hundred  pounds  were  lent  by 
way  of  mortgage  upon  an  assignment  of  a  building  lease,  and  the  mort- 
gagee never  entered  nor  took  possession,  but  lost  the  money  lent,  the 
defendant  in  equity  having  recovered  against  the  mortgagee,  as  as- 
signee, the  rent  reserved  on  the  lease,  the  bill  was  to  be  relieved  against 
the  recovery  at  law ;  and  the  Court  dismissed  it,  saying,  the  mortgagee 
was  ill  advised  to  take  an  assignment  of  the  whole  term  {d). 

Upon  re-consideration  of  this  question  in  the  case  of  Eaton  against 
Jacques,  it  was  determined  that  a  mortgagee,  assignee  of  a  terra  for 
years,  should  not  be  liable  to  the  covenants  in  the  lease,  unless  he  had 
taken  actual  possession.     But  this  doctrine  no  longer  obtains  {e). 

Indeed  that  the  assignee  is  liable  only  in  respect  of  actual  posses- 
sion is  certainly  contradicted  by  a  case  which  arose  on  a  bill  by  the 
executor  of  a  lessor  against  the  depositary  of  a  lease  to  secure  to  hira 
a  debt,  for  the  specific  performance  of  a  covenant  to  rebuild  houses 
upoti  the  premises  in  the  eleventh  year  of  the  term,  which  was  a  terra 
of  seventy-one  years;  to  be  held  for  the  first  ten  years  at  a  pecuniary 
rent,  for  the  eleventh  year  at  a  pepper-corn  rent,  and  for  the  rest  of  the 
term  at  a  pecuniary  rent.  The  defendant,  by  his  answer,  stated  th€ 
fact  01  the  disposal  l->y  way  of  mortgage,  and  insisted  that  having  no  title 
but  as  mortgagee,  he  was  not  bound  to  rebuild.  Lord  Thurlon  (Chan.) 
thouglit  that  there  could  not  be  a  decree  to  rebuild,  as  he  could  no  more 
undertake  the  conduct  of  a  rebuilding  than  of  a  repair.  But  his  lordship 
said,  it  was  no  matter  whether  the  defendant  took  it  as  a  pledge,  or  as  a 
purchase,  for  he  could  not  take  the  estate  as  a  security,  and  refuse  the 
burthen  that  was  upon  it ;  but  having  once  taken  it,  he  could  not  aban- 
don it :  that  being  then  only  an  assignee  in  equity,  no  action  could  be 
brought,  and  that  the  only  relief  that  he  could  give  the  plaintijf,  as  he 
could  not  give  him  damages,  was  to  put  him  in  a  situation  to  recover 

(•a)  6  T.  R.  673.  (6)  Ibid.  393.  (e)  Pow.  on  Mort.233. 

(rf)  IbiJ.  23'1.  (e)  Doug.  455. 


Sect.  Win.]     Of  fjcnscs  by  CopyholiUrs,  SCt.  e.'^i 

Iheni;  his  lordship  therefore  decreed,  tlsiit  4hc  defendants  shoidd  take 
an  as.«.i^inn(iit  of  the  h.-ase  and  execute  a  counterpart,  and  that  they 
should  pay  the  costs  (<f). 

Indeed,  the  principh-,  that  a  niorti^au^ce  is  lial)lc  only  in  respect  of 
his  possession  seems  no  h)nj^er  to  be  recot^nized  in  eitiier  a  court  of 
law  or  ('(piity  (/>).— Thus,  >vlrerc  the  plaint ilf  was  the  original  lessee  of 
a  tern>,  uhicjj  he  assii;ncd  to  Kay,  wlio  assigned  it  by  way  of  niort- 
gns^e  to  the  defendant  as  a  seeiuity  for  the  re-pjiynient  of  a  sum  of 
juoney,  the  action  was  l)rouq;ht  to  recover  the  amount  of  ground-rent 
paid  hy  the  p.iaintifTdiirin;;  tlu:  interest  of  the  dcferulant  as  mortgae^ec. 
l^ord  Knit/on  said,  that  the  defendarjt  was  lia!)!c  as  assignee:  his  lia- 
bility was  not  limited  by  his  possession,  but  as  long  as  he  hatl  thelegaL 
estate,  so  long  he  continued  liahle  to  perform  the  covenants  in  the  lease. 
If  he  wished  to  avoid  that  liability,  he  should  have  taken  an  under- 
lease (v"). 

A  mortgagee  in  possession  is  not  ol)liged  to  lay  out  money  any 
furtlierthan  to  kci-p  the  estate  in  necessary  repair.  If  the  estate  lies  at 
such  a  distance  that  iu'  must  eni[)loy  a  baililfto  collect  the  rents,  what 
he  paid  to  tlic  bailifl"  shall  be  allowed  ;  but  not  where  he  does  or  may 
receive  the  rents  himself  (r/). 

If  //.  mortgage  land  to  B.  upon  condition  to  re-enter  on  payment  of 
10/. ;  and  afterwards  J.  before  the  day  of  payment  is  come,  being  in 
possession,  make  a  lease  for  years  by  imlenture  to  C.  and  then  after- 
wards performs  the  condition,  this  shall  make  the  lease  to  C.  good 
igainst  liimself  by  e.toppel  ('). 


Si;<  TiuM  WIT.  Of  Leases  hy  Tenants  hy  Ele<^il,  Stuiulc- 
Merchant,  and  >:>latutr-Slaplcy  S^c. 
As  tenants  under  these  executions  have  only  uncertain  interests,  de- 
terminable at  any  time  on  payment  of  the  sum  secured,  they  cannot 
enter  into  any  contract  for  a  lease,  Mhich  will  not  be  lial>le  to  be  put 
an  end  to  in  tJic  same  event;  but  till  such  contini^cncy  occurs  their 
demises  arc  good.  It  however  very  rarely  happens  that  leases  are  grant- 
ed by  persons  thus  entitled,  and  \sq.  shall  not  tiierefore  eiitcr-  more 
at  InrL'-e  into  the  ?uV)ject. 


Section   XVIIT.     Of  Leases  by  Cupjjholders  ;    nherein  of 

Licence. 
A  copyholder  cannot,  unless  by  special  custoni  or  by  licence  from 
the  lord,  con\  cy  any  common  law  interest  in  his  lands  to  another,  as 

ai  1  Pow    ooMort.  20.  (i^  Stow  v    RTaii8.,Sitt   at  VVcrtra.  T.  T.  39  C.3.  T'«  M    S    & 

'    JJoug.  43ij.  d]  J  ^tk..  518.  (t)  Uac.  Abr    Ut.  "  Ltaes.'    ti  ' 

13 


80  Of  Leases  by  Copi/JwhJcrs ;  [Ciiap.  III. 

such  an  act  is  incorai)alibIe  with  his  tenancy ;  so  that  if  he  make  a  lease 
for  years  without  licence,  though  by  parol  only  (a) ;  or  even  if  it  be  to 
commence  infuturo  (Ji)^  it  will  he  a  forfeiture  of  his  tenement.  But  an 
interest  must  actually  pass ;  for  a  promise  or  covenant  to  demise  will 
not  create  a  forfeiture,  for  it  is  no  lease  (r). 

But  a  copyholder  may  make  a  lease  for  one  year  without  a  licence, 
and  thereupon  may  maintain  an  ejectment  {d). 

By  special  custom  a  copyholder  may  make  leases  for  three,  nine,  or 
twenty-one  years,  or  for  life  and  forty  years  after,  without  licence  fro^ii 
the  lord ;  upon  which  also  he  may  maintain  an  ejectment  {e). 

But  a  custom  that  the  lease  shall  be  void  if  the  lessor  dies,  is  good ; 
though  not  if  the  lessor  alien  (/). 

Although  a  lease  for  a  year,  without  licence,  be  gnod,  yet  a  lease  for 
one  year  ct  sic  dc  anno  in  annum  during  ten  years,  being  a  good  lease  for 
ten  years,  is  a  forfeiture :  but  otherwise  of  a  lease  for  one  year,  with  a 
covenant  for  the  holding  it  for  a  longer  time  at  the  will  of  the  lessor. 
So  a  lease  for  a  year  el  sic  de  anno  in  annum  for  the  life  of  the  lessee, 
being  a  lease  for  two  years  at  least,  is  not  good.  So,  if  de  anno  in 
annum,  excepting  one  day  in  every  year,  for  it  is  a  certain  lease  for  two 
years,  excepting  two  days,  which  is  a  lease  in  effect  for  more  than  one 
year  ;  and  although  there  be  the  intermission  of  a  day,  yet  that  is  Hot 
material  (g). 

So,  if  a  copyholder  make  three  leases  together,  each  to  commence 
'svithin  two  days  after  the  expiration  of  the  other  it  is  a  mere  evasion  of 
the  custom  and  therefore  not  good  (/<). 

So  if  a  copyliolder,  to  secure  a  person  Avho  has  become  bound  for 
him,  covenant  that  such  person  shall  hold  and  enjoy  the  copyliold  es- 
tate for  seven  years,  and  so  from  Ee\  en  years  to  seven  years,  for  the 
term  of  forty-nine  years,  if  the  copyholder  so  long  live,  it  is  a  forfeiture 
of  the  estate  :  though  there  is  a  clause  that  the  deed  should  be  void  on 
the  bond  being  paid  ;  for  this  deed,  though  intended  only  as  a  collate- 
ral security,  amounts  to  a  present  lease  (/). 

A  copyholder,  having  licence  to  lease,  ought  to  pursue  his  licence 
strictly,  otherwise  his  lease  is  void  (k). 

As,  if  he  has  a  licence  to  lease  for  twenty-one  years  from  Michaelmas 
last,  and  he  leases  for  twenty-one  years  from  December  next.  So  if 
he  has  a  licence  to  lease  for  two  years  and  he  leases  for  three  years.  So 
if  a  copyholder  in  fee  has  a  licence  to  lease  for  years,  if  he  so  long  live, 
and  he  leases  for  years  absolutely  (Z). 

So,  a  copyholder  having  licence  to  make  a  lease  for  twenty-one  years, 
cannot  make  two  leases  for  that  term  ;  for  he  has  satisfied  his  licence 
by  one  lease  (m). 

(a(  Moore,  39S.    Oro.  Eliz.  498.  (b)  Ibid.  (c)  3  Keb.  638.     1  Dulat.  190^ 

(rf)Cro.  Jac.  403.    Cro.  Car.  233.     Cro.  Eliz.  422,  535,  718. 

(«)  Com.  Dig.  tit. ' '  Copyhold,"  (K.  3.)  (  /  )  Ibid.  (g)  Cro.  Jac.  301. 

(A)  Cro.  Car.  233.  (i;  2  Mod.  79.  (Jt)  Com    Pi2.  ut  ante. 

(';  Ibi<-  f/i.)  Ibid. 


Sect.  XVIII.]  ivhcrein  of  lAccuci.  M? 

If  a  copyholckr  makes  a  lease  l>y  licence,  the  lessee  may  af;^ign  uilli 
licence,  or  make  an  under  lease,  for  the  lord  l)y  his  licence  has  parted 
with  his  interest  (n). 

So  if  the  lessor  alter  a  lease  hy  licence  dies  svithout  heir,  tli<  lesseey 
shall  have  it  fur  his  term  against  the  lord  ;  for  the  licence  is  a  confirma- 
tion of  the  lord  (^). 

If  the  lord  licentic  his  copyholder  to  make  a  lease  of  lands  in  the 
tenure  of  //.  thougli  they  are  in  the  tenure  of  B.  yet  the  licence  is 
good  (r). 

A  copyholder,  having  a  licence  to  lease,  may  Icxse  for  fewer  years 
than  his  licence  allows ;  as  a  lease  for  three  years,  under  a  licence  to  let 
for  twenty-one,  whicJi  is  gootl  (J). 

If  the  lord  license  his  copyholder  for  life  to  make  a  lease  for  three 
years,  if  he  so  long  live,  a  lease  for  three  years  absolutely  is  good  :  for 
a  lease  by  a  copyholder  for  life  determines  by  his  death,  and  therefore 
the  condition  annexed,  being  implied  bylaw,  is  void  (c). 

If  the  lord  license  upon  condition,  the  condition  is  void  ;  for  he 
gives  uothiitt;,  but  only  dispenses  with  the  forfeiture  (/). 

A  licence  may  however  be  upon  a  condition  precedent  ;  for  till  the 
condition  be  performed  it  is  no  licence  (i^). 

If  a  copyholder  make  a  lease  for  years  of  land  whereof  a  feme  by 
custom  is  to  have  her  widow's  estate,  she  shall  not  avoid  the  lease, 
unless  there  be  a  special  custom  to  avoid  it ;  for  he  comes  under  the 
custom,  and  by  the  lord's  licence,  as  well  as  the  feme  (A). 

So  if  a  copyholder,  after  a  lease  by  licence,  forfeits  his  copyhold,  the 
lord  shall  not  avoid  the  lease  ;  or  if  he  die,  as  before  observed,  with- 
out any  heir  (i). 

If  a  copyholder  by  licence  makes  a  lease  for  years,  rendering  rent,  he 
cannot  afterwards  release  the  rent  without  a  surrender  of  the  rever- 
sion (/•). 

A  lease  for  years  by  parol,  made  by  the  remainder-man  of  a  copy- 
hold in  fee,  commences  immediately,  if  the  tenant  for  life  join  with 
liim  and  surrender  the  estate  to  his  use  (/). 

When  the  baron  was  seised  of  a  manor  in  right  of  his  feme,  and  let 
a  copyhold  parcel  thereof  for  years  by  indenture  and  died,  it  was  held 
that  it  should  not  destroy  the  custom  to  demise  it  by  copy,  I)ut  after 
the  death  of  her  baron,  the  feme  might  so  demise  it  as  before.  The 
same  law  is,  if  tenant  for  life  of  a  manor  lets  a  copyhold  parcel  of  the 
manor  for  years,  and  dies,  it  shall  not  destroy  the  custom  as  to  him  in 
reversion  (?;i). 

A  lease  for  years  by  a  copyholder,  with  the  licence  of  the  lord 

(a)  Cora.   Dig.  u«  antt.  (ft)  Ibid.  (c)  Cro.  Kliz    160 

(J)  ibid.  J:»5.    Cro    Jic  437.  («)  Cro.  Eljz.  (46:  J  (/)  Ibid. 

(g)  Com.  Olg.  vJ  a;U«,  (A;  Cro.  J«c.  36.  (i)Com.  V\t   vtwue. 

'.«     I^-i"*.  O)  Cro.  £li;.  I«0.  (-/^^  Ibid    15'.' 


88  OJ  Leases  hy  Copj/holdcrs,  SCc.        [Chap.  IIL 

where  the  \^  idow  bj^  custom  would  be  entitled  to  her  freebench,  if  the 
copyholder  had  died  seised,  defeats  the  widow  of  her  freebench  {a). 

A  lease  without  licence,  and  contrary  to  tlie  custom,  in  order  to 
amount  to  a  forfeiture  must  be  a  perfect  lease,  and  must  have  a  certain 
beginning  and  a  certain  end,  for  otherwise  the  lease  is  void,  and  carries 
but  an  estate  at  will  at  most,  which  is  no  forfeiture  {0). 

Therefore,  where  a  copyholder  had  demised  his  copyhold  for  a  year, 
and  agreed  to  grant  a  further  term  of  twenty-one  years  provided  he 
could  obtain  of  his  lord  a  licence  for  that  purpose,  this  was  held  to  be 
a  condition  precedent,  and  that  tlierefore  no  forfeiture  was  incurred. 

So  where  a  copyholder  agreed  to  demise,  and  let  certain  premises, 
for  a  term  of  twenty-one  years,  and  covenanted  to  procure  a  licence 
to  let  the  same,  and  that  the  lessee  should  peaceably  enjoy  for  the  said 
term  of  twcnty-one  years  ;  this  was  held  to  be  an  executory  agreement, 
and  not  a  lease  ;  for  if  it  were  held  to  be  a  lease,  a  forfeiture  would  be 
incurred  ;  whereas  that  would  be  contrary  to  the  intent  of  the  parties, 
who  have  cautiousjy  guarded  against  it  by  the  insertion  of  a  covenant 
that  a  licence  to  lease  should  1)6  procured  from  the  lord  (r). 

A  demise  by  a  copyholder  for  one  year,  and  at  the  end  of  that  term 
from  year  to  year  for  the  term  of  thirteen  years  more,  in  all  fourteen 
j'ears,  if  the  lord  will  give  licence,  and  so  as  there  shall  be  no  forfeiture 
■with  the  usual  covenants  in  a  farm  lease  ;  the  licence  is  a  condition 
precedent,  and  not  being  granted,  there  is  no  lease  at  law  farther  than 
from  year  to  year,  and  there  is  no  equity  upon  the  circumstance,  that 
the  lord  purchased  his  tenants  iiiterest  with  notice  of  demise,  and  an 
express  exception  of  all  subsisting  leases  or  agreements  for  leases   (d). 

So  an  agreement  by  a  copyholder  to  grant  a  lease  for  twent3--one 
years,  if  the  licence  of  the  lord  could  be  obtained,  and  that  he  would 
use  his  best  endeavours  to  obtain  such  licence,  and  that  in  the  mean 
time  it  should  be  lawful  for  the  lessee  peaceably  to  enjoy  and  occupy 
the  premises ;  does  not  amount  to  a  lease  for  a  longer  time  than  a  year, 
and  is  therefore  not  a  forfeiture  (r). 

An  infant  copyholder  without  licence  of  the  lord,  made  a  lease  for 
years  by  parol,  rendering  rent,  and  at  full  age  was  admitted,  and  ac- 
cepted the  rent,  and  then  ousted  tlie  lessee  ;  and  in  this  case  it  w  as  ad- 
Judged,  that  the  lease  was  a  good  lease  till  avoided,  and  that  a  lease  for 
years  by  a  copyholder  without  licence  is  not  a  disseisin  ;  and  admit- 
ting that  it  should  be  a  forfeiture  in  this  case,  yet  if  the  lord  enters 
for  if,  tlie  infant  may  re-enter  upon  him,  and  so  is  no  mischief;  and 
therefore  he,  having  accepted  the  rent  at  full  age,  hath  made  it  good 
and  unavoidable,  and  being  at  all  events  a  good  lease  as  to  all  strangers, 
for  that  reason  principally  it  was  adjudged  that  such  acceptance  had 
made  it  good  (/). 

frf)Cerf:p  181.  (b)  Rac  Al.r.  tit.  "I.«ase3,"  (\.  6  )  (c)  2  T.  R.  739 

fd)  11  Ves.  JTO.  fc)  £  Taunt.  54.  ^/;Bac.  Abr.  ut  ante 


Sict.  XI X.]         Of  Leases  I  if  Jolnl-Ttnants,  S:r.  80 

A  lease  f)y  acopyholilcr  for  a  year,  with  a  rovenanl  to  renew  yearly 
we  have  before  ol»servc4l  is  not  a  forfeiture  In  such  covenant  it  w  ould 
perhaps  he  Ptilllxlter  if  it  were  worded  »  lo  permit  and  PiilVer"  the 
lessee  to  have,  hold,  and  enjoy  the  lands  in  sneli  manner:  foracovc- 
nint  in  that  form,  even  of  freehold  lands,  will  not  amonnt  loan  imme- 
diate lease,  hecanse  the  words "  permit  and  siiU'er"  i)rovc  that  the  es- 
tate is  i^tilllo  continrie  in  him  from  whom  the  permission  is  to  rome  ; 
for  if  any  ctatc  thereby  passed  to  the  eoveliantce,  he  might  hold  and 
enjoy  it  without  any  permission  from  the  covenantor,  ami  therefore  iu 
such  case  the  coveiiantcf^  halh  only  (he  hare  covenant  for  his  security 
of  enjoyment,  w  itiiout  any  actual  estate  made  over  t(»  him  (<i). 

A  copyholder  at^reed  to  tjrant  a  lease  for  years,  if  a  licence  coidd 
be  obtained,  and  also  to  procure  the  lessee  a  licence  to  dig  fidler's  earth, 
and  that  in  the  mean  time  lie  lessee  niiuht  dii,'',  /illin^;  up  the  holes. 
The  lessee  having  dug,  without  fillini;  them  up,  it  was  insisted  that  the 
omission  was  an  act  of  waste  ;  but  it  was  held  that  the  digging  consti- 
tuted the  waste,  anil  that  as  the  under-tenant  dug  by  the  Ic.-^sor's  own 
licence,  he  could  not  insist  on  the  forfeiture  {b). 

The  admittance  of  a  copyholder,  after  a  forfeiture  is  incurred,  is 
clearly  a  waiver,  and  any  act  equally  solemn  will  operate  in  the  same 
manner.  Such  acts  as  operate  as  a  wai\er  do  not  operate  ao  a  new- 
grant,  but  admit  the  tenant  to  be  in  of  his  old  title  (r). 

Fveryone  havii>g  a  lawful  interest  hi  a  manor,  may  make  voluntary 
grants  of  copyholds  escheated,  or  come  to  hi«:  hands,  as  well  as  admit- 
tances, rendering  tiie  ancient  rents  and  services,  which  bind  him  who 
has  the  inheritance  (d). 

A  i^rant  tlureforc  by  any  steward  having  colour  of  title,  and  grant- 
ing not  contrary  to  tlic  command  of  the  lord,  is  gontl.  Souf  a  clerk  of 
a  steward,  if  he  holds  a  court  and  makes  grants  ;  for  the  tenants  can- 
not examine  his  authority,  nor  need  he  give  them  an  account  of  it.  So, 
of  adepidy  (r). 

Hut  a  tenant  at  will  (jf  a  manor  cannot  grant  a  cojjylioldcr  licence  to 
alien  for  years;  and  if  tenant  for  life  of  a  manor  granf<^  n  licenre  to 
alien  for  years,  it  determinv.s  at  his  death  ( /"). 


Section  X IX.     Of  Leases  by  Joint-Tenants,  Coparcenat:, 
and  Tenants  in  eoninwn. 

Joint-tenants,  coparceners,  anrl  tenants  in  comnion,  may  cither  make 
leases  of  their  undivideil  shares,  or  else  may  all  join  in  a  lease  of  the 
whole  toa  straui^cr.  On?  joint-teiiant,  or  tenant  in  common,  may  also 
make  a  lea-se  of  his  part  to  his  coujpnnion  ;  lor  thi'-  only   gives  him  a 

raj  Cro   Jnr.  :»in.     Bar.  Abr  tii  anfr.  ('ftj  a  Tlunt   'C  ^^J:<T.  R17I. 


90       Of  Leases  hy  Joint-Tenants,  Coparceners^     [Chap.  TIL 

riglit  of  taking  the  whole  profits,  when  ])efore  he  had  but  a  riglit  to  tlie 
moiety  or  share  thereof;  and  he  may  contract  with  his  companioh  for 
that  purpose  as  well  as  with  a  stranger  (n). 

If  there  he  two  joint-tenants,  and  they  make  a  lease  by  parol  or 
deed-poll,  reserving  rent  to  one  only,  it  shall  enure  to  both  ;  yet  if  the 
lease  had  l)een  by  deed  indented,  the  reservation  should  have  been 
good  to  him  only  to  whom  it  was  made,  and  the  other  should  have 
taken  nothing. — The  reason  of  the  difference  is  this;  where  the  lease 
is  by  deed-poll  or  parol,  the  rent  will  follow  the  reversion,  which  is 
jointly  in  )).  th  lessors,  and  the  rather,  because  the  rent  being  something 
in  retribution  for  the  land  given,  the  joint-tenant  to  whom  it  is  reserved 
ought  to  be  seised  of  it  in  the  same  manner  as  he  was  of  the  land  de- 
mised, which  was  equally  for  the  benefit  of  his  companion  and  himself; 
but  v/here  the  lease  is  by  deed  indented,  they  are  estopped  to  claim  the 
rent  in  any  other  manner  than  is  reserved  by  the  deed,  because  the  in- 
denture is  the  deed  of  each  party,  and  no  man  shall  be  allowed  to  re- 
cede from  or  vary  his  own  solemn  act  {b). 

If  one  joint-tenant  does  a  thing  which  gives  to  another  an  estate,  or 
right  in  the  land,  it  binds  the  survivor;  as  if  a  joint-tenant  in  fee  or 
for  life  makes  a  lease  for  forty  years  (r). 

Therefore,  if  two  joint-tenants  arc  in  fee,  and  one  lets  his  moiety 
for  years,  to  begin  after  his  death,  this  is  good,  and  shall  bind  the 
other  if  he  survive,  because  this  is  a  present  disposition,  and  binds  the 
land  from  the  time  of  the  lease  made,  so  tliat  he  cannot  afterwards 
avoid  it. 

So  if  one  joint-tenant  grant  the  vesture  or  herbage  «f  the  land  for 
years,  and  dies,  this  shall  bind  the  survivor  ;  or  if  two  joint-tenants  are 
of  a  water,  and  one  grants  a  separate  piscary  for  years  and  dies,  this 
shall  bind  the  survivor  ;  because  in  these  cases  the  grant  of  the  one 
joint-tenant  gives  an  immediate  interest  in  the  thing  itself  whereof  they 
are  j.  int-tenants  {d). 

If  there  arc  two  joint-tenants  for  life,  and  one  of  them  makes  a 
lease  for  years  of  his  moiety,  either  to  begin  presently  or  after  his  death, 
and  dies,  this  lease  is  good  and  binding,  against  the  survivor :  the  rea- 
son whereof  is  that  notwithstanding  the  lease  for  years,  the  joint- 
tenancy  in  the  freehold  still  continues,  and  in  that  they  have  a  mutual 
interest  in  each  other's  life,  so  that  the  estate  in  the  ^vhole  or  any  part 
is  not  to  determine  or  revert  to  the  lessor  till  both  are  dead,  for  the 
life  oi  one  as  well  as  the  other  was  at  first  made  the  measure  of  the 
estate  granted  out  by  the  lessor,  and  therefore  so  long  as  either  of 
theui  lives,  if  the  joint-tenancy  continues,  he  is  not  to  come  into  pos- 
session (c).     Now  these  joint-tenants  having  a  reciprocal  interest  in 

(ii)  1  Inst.  106.  a. 
(6)  Bar.  Abr.  fit.  "  Joint-tenants  and  Tenants  in  common,"  (U.  10  Cm.  Jac.  91. 
■'       i.e)  Com.  Dig.  tit.  "  Esiates,"  (.K.  7.)        (d\  Bac.  Abr  ul  anlr        (e)  Bac  Abi.  ul  ante.  Cro.  JSC.  S:. 


"^ert.  XIX.]  and  Tinnnta  in  conunou.  'J\ 

caili  other's  lilV,  when  one  of  lluiu  makes  a  Ica^c  for  years  of  hi.'*  luoicly, 
this  dots  not  (lei>ci)(l  on  its  continuance  for  his  life  only,  hut  on  liis  life, 
and  the  life  of  the  other  joint-tenant,  wliiiliMiever  of  thtni  sliall  live 
longest,  aciordint;  to  the  nature  and  continuance  of  the  c&tale  wluic- 
out  it  was  derived ;  and  then  so  loni;  as  that  continues,  so  lonj^the  lease 
holds  good,  and  by  consequence  such  lessee  sliall  hold  out  the  surviving 
joint-tejiant  and  the  reversioner,  till  the  estate,  w hereout  tliis  !cas<;  uas 
derived,  he  fully  tietiiiuined. 

I'.ut  if  a  rent  were  rcpcrvcd  on  sticli  lease,  this  is  detcrnilncd  and 
gojie  by  the  death  of  the  lessor :  for  the  survivor  cann<it  have  it,  hccausc 
lie  couies  in  by  title  paramount  to  the  lease,  and  the  lieirs  of  the  lessor 
have  no  title  to  it,  because  they  have  no  reversion  or  interest  in  the 
land  (rt)  ;  but  the  executors  or  ailministrators  may  maintain  an  action 
of  debt  or  covenant;  this  remedy  being  now  given  to  the  re[iresenta- 
tives  of  such  a  leisor ;  for  by  statute  11  G.  2.  c.  19.  s.  15.  the  executors 
or  administrators  of  tenant  for  life  shall,  on  his  death,  recover  of  the 
lessee  a  rateable  proportion  of  the  rent  from  the  bst  day  of  payment  to 
the  death  of  such  lessor. 

J.  and  U.  being  joint-tenants  for  life,  a  lease  made  by  ./.  of  the 
moiety  to  have  and  to  hold  after  the  death  of /i.  for  sixty  years  if  J.  so 
long  live,  and  of  the  other  moiety  to  have  and  to  hold  alter  the  death 
of  J.  for.  sixty  years  if  B.  so  long  live,  and  J.  dies,  B.  surviving,  is 
bad  for  both  moieties :  for  by  the  first  words  it  was  a  good  lease  from 
J.  of  his  part,  upon  the  contingency  surviving  B.  but  that  never  hap- 
pened, and  as  to  B's  part,  J.  had  no  power  to  lease  or  contract  for  it 
during  the  life  of  B.  though  he  had  happened  after  to  survive  him,  for 
it  was  but  a  bare  possibility,  which  could  not  be  leased  or  contracted 
for,  and  therefore  tbe  lease  was  void  in  the  whole  (//). 

So,  if  one  joint-tenant  make  a  lease  for  years,  "  if  he  and  his  com- 
panion live  so  long,"  and  afterwards  surrender  his  moiety,  and  take 
back  another  estate,  the  lease  determines  by  the  death  of  cither  of  thera : 
for  it  hath  no  continuance  longer  than  the  jointure  contitmes,  w  liich  is 
severed  by  the  surrender,  a  new  estate  being  taken  (f ). 

If  johit-tenants  join  in  a  lease,  this  shall  be  but  one  lease,  for  they 
have  but  one  freehold  ;  but  if  tenants  in  common  join  in  a  lease,  this 
shall  be  the  lease  of  each  for  their  respective  parts,  and  the  cross  confir- 
mation of  each  for  the  part  of  the  other,  and  no  estoppel  on  either  part, 
because  an  actual  interest  passes  from  each  respectively,  and  that  ex- 
cludes the  necessity  of  an  estoppel,  which  is  never  admitted,  if  by  any 
construction  it  can  be  avoided  (c/). 

(o)  Pac.  Abr.  xdantt.  (6)  Cro.  Jie.  92.  377  (c)  Cro.  J»c   377 

{d)  Com    Dig    tit    "  Kstitei,"  '  K.  (  ',  B»c.  Abr.  tit.  "  Joint-Tcnists.  »riil  Tcntct*  i.i  <'j-.,.,m„  ■ 


92  Of  Leasts  pursuant  to  Aulhorily  ;        [Chap.  III. 

Section  XX.     Of  Leases  pursuant  to  AufhorUy ;  ivherein 
of  Leases  hjj  Alt  amies,  Agents,  SCc. 

If  one  hatli  power,  by  virtue  of  a  letter  of  attorney,  to  nial^e  leases 
for  years  generally  by  indenture,  the  attorney  ought  to  jnake  them  in 
the  name  and  style  of  his  principal,  and  not  in  his  own  name;  for  the 
letter  of  attorney  gives  him  no  interest  or  estate  in  the  lands,  but  only 
an  authority  to  supply  the  absence  of  his  principal  by  standing  in  his 
stead,  which  he  can  no  otherwise  do  than  by  using  his  name,  and 
making  thera  just  in  the  same  manner  and  style  as  his  principal  would 
do  if  he  were  present.  If  he  should  make  them  in  his  own  name, 
though  he  added  also  "  by  virtue  of  the  letter  of  attorney  to  him  made 
for  that  purpose,"  yet  such  leases  seem  to  be  void,  because  the  inden- 
ture being  made  in  his  name,  must  pass  the  interest  and  lease  from 
him,  or  it  can  pass  it  from  nobody :  it  caimot  pass  it  from  the  principal 
immediately,  because  he  is  no  party,  and  it  cannot  pass  it  from  the  at- 
torney at  all,  because  he  has  nothing  in  the  lands  ;  and  then  his  adding, 
"  by  virtue  of  the  letter  of  attorney,"  will  not  help  it,  because  that 
letter  of  attorney  made  over  no  estate  ©r  interest  in  tlie  land  to  him, 
and  consequently  he  cannot,  by  virtue  thereof,  convey  over  any  to 
another  (ri). 

Neither  can  such  interest  pass  frojn  the  principal  immediately,  or 
through  the  attorney  (^b)  ;  for  then  the  same  indentui'e  must  have  this 
strange  effect  at  one  and  the  same  instant,  first  to  draw  out  the  interest 
from  the  principal  to  the  attorney,  and  from  the  attorney  to  the  lessee, 
Avhich  it  certainly  cannot  do,  and  therefore  all  such  leases  made  in  that 
manner,  seein  to  be  a])solutely  void,  and  not  good,  even  by  estoppel 
against  the  attorney,  because  they  pretend  to  be  made  not  in  his  own 
name  a])solt!tcly,  but  in  the  name  of  another,  by  virtue  of  an  authoritj- 
•which  is  nut  pursued  (c). 

This  case  therefore  of  making  leases  by  a  letter  of  attorney,  seems 
to  differ  from  that  of  a  surrender  of  a  copyhold,  or  of  livery  of  seisin  of 
a  freehold  by  letter  of  attorney  ;  for  in  those  cases  when  they  say,  "  we 
J.  and  B.  as  attornies  of  C"  or,  "  by  virtue  of  a  letter  of  attorney 
from  C.  of  such  a  date,  ^-c."  "  do  surrender,  c?r  "  or  "  deliver  to  you 
seisin  of  such  lands,"  these  are  good  in  this  manner,  because  they  are 
only  ministerial  ceremonies,  or  transitory  acts  in  pais,  the  one  to  be  done 
])y  holding  the  court  rod,  and  the  other  by  delivering  a  turf  or  twig ; 
and  when  they  do  them  as  attornies,  or  by  virtue  of  a  letter  of  attor- 
ney from  their  principals,  the  law  pronounces  thereupon  as  if  they  were 
actually  done  by  the  principal  himself,  and  carries  the  possession  ac- 
cordingly (d). 

(uj  13ac.  Abr   ♦jt.  "  Leases"  a    10.;  (t)  Ibid.  (e)  2  Ld.  Ray    Uin 

UJ)  Bac   on  Lea.  M2< 


Sccl.  XX.J    nhercin  of  Leases  hi/  A/tornics,  t*S(.  1)^ 

I5itt  ill  a  lease  for  years  it  isfjuifc  nllierwise,  fur  the  indtnliire  or  deri! 
alone  convey  the  interest,  and  ar<'  the  very  essence  of  tlie  Jeofe,  holh  as  to 
l!ic  papsinu;  it  out  of  the  lessor  at  first,  and  its  .«iif»fi5tencc  in  the  lessee  a*"- 
teruards.  'I  he  \t;ry  indenture  or  deed  itself  is  the  conveyance,  witliout 
any  SMhsoqnent  construct  ion  or  operation  of  law  thertiipon  ;  and  there- 
fore il  nu!<t  he  n:aih"  in  tlie  name  and  style  of  iiini  w  lir)  Uqb  such  interest 
to  convey,  and  not  in  t!i<"  name  and  stsleof  the  att.irney,  who  ha<  nf>. 
tliini;  therein  ;  hut  in  the  conehision  of  such  lease  it  is  proper  to  sa^ 
"  in  w  itness  wheiTof  /.  IL  ofsiirh  a  place,  A'c  in  ptu'suance  of  a  letter 
of  alti»rney  hereunto  aimexed,  hearing  date  such  a  <Uy :"  or  if  the 
letter  of  attorney  he  general,  and  concern  mor*'  land;;  than  those  coni- 
jtriseJ  in  the  present  lease,  then  to  say,  "  in  pursuance  of  a  letter  nf 
attorney,  hearinir  date  such  a  day,  A'r.  a  true  copy  whereof  is  hereunto 
annexed,  hath  put  the  hand  and  seal  of  the  prineii)al,"  and  so  to  write 
tlie  priiuipal's  name,  and  deliver  it  as  the  act  and  <[ki:(\  of  the  principal ; 
in  whicli  last  ceremony  of  delivering  it  in  the  name  of  the  principal  of 
6uch  attorney,  tins  exactly  a^^rces  with  the  ceremony  of  surrendering  by 
the  pul,  or  makinq;  livery  by  a  turf  or  tu  i-,  by  the  attorney  in  the  name 
Mid  as  attorney  of  his  principal  ;  whicli  proves  that  there  is  a  great  di- 
versity between  psing  the  name  of  the  attorney  in  the  making  of  leases, 
and  usin;;  his  name  in  making  a  surrender  of  copyhold  or  livery  of 
sei^■in  of  a  freehold  estate. 

A  special  agent  under  a  limited  autliority  cannot  biiul  his  principal 
by  an  act  I)eyond  the  scope  of  such  limited  authority  (^<). 

The  Court  of  Chancery  will  interhie,  where  an  ai;ent  procures  liis 
principal  to  grant  a  lease  on  disadvantai^eous  terms;  it  appearing  that 
the  ai^ent  took  an  interest  in  the  lease  (/>). 

If  the  defendant  insist  that  the  lease  declared  on  is  not  the  plaint  id's, 
the  plaintiff  may  shew  that  it  was  made  by  ,/.  who  had  authority  from 
him  to  execute  it  in  his  name,  and  the  authority  need  not  be  produced. 
Hut  the  lease  must  be  made  and  exccutetl  in  the  name  of  the  princi- 
pal (r). 

liiit  in  a  recent  case  it  was  lieid,  tli  it  where  a  party  executes  a  deed 
tinder  a  power  of  attorney,  the  power  ou^ht  to  l)e  proiluced  (a). 

Agreement  for  a  lease,  made  with  an  ai;ent  who  acts  under  a  power 
of  attorney,  and  a  lease  executed  by  such  agent  in  pursuance  of  the 
agreement,  shall  bind  the  principal  (rj. 

A\'liere  a  man  does  such  an  act  as  cannot  be  good  by  any  oMier  means 
but  by  virtue  of  his  authority,  it  shall  be  intended  to  be  an  execution 
of  his  authority,  but  where  a  man  has  an  interest  and  an  authority,  and 
does  an  act  u  iUiout  reciting  his  authority,  it  shall  be  intended  to  be 
tlone  by  virtue  of  his  interest  (  /'). 

A  bailiil"  of  a  manor  caiinot,  by  virtue  of  his  olhcc,  make  leases  for 

'a)  1  T.  R    57i.  (6)  Ifi  Vej.  jiiD    U  (c)  Bull    N.  P    IT?.  (d)  1  Esp    R.  90. 

(f>  1  Br.  Pari.  Cn.  ?.ll.  /" ,  I  Ld    Hty.  660. 

It. 


94  Of  Leases  pursuant  to  Auihorityy  SCc.     [Chap.  III. 

years ;  for  his  business  is  only  to  collect  rents,  gather  the  fines,  look 
after  the  forfeitures,  and  such  like  :  but  he  hath  no  estate  or  interest  in 
the  manor  itself,  and  therefore  cannot  contract  for  any  certain  interest 
thereout.  But  the  lord  of  the  manor  may  give  him  a  special  power  to 
make  leases  for  years,  as  he  may  do  to  any  stranger,  and  then  such  leases, 
if  they  are  pursuant  to  the  po^\■e^,  and  made  in  the  name  of  the  lord, 
■will  be  as  good  as  leases  by  the  lord  himself;  for  the  bailiff,  though  he 
hath  such  power,  cannot  make  them  in  his  own  name  (rt). 

But  a  general  bailiiTof  a  manor  may  make  leases  at  will,  without  any 
special  authority,  because,  ])eing  to  collect  and  answer  the  rents  of  the 
manor  to  his  lord,  if  he  could  not  let  leases  at  will,  the  lord  might  sus- 
tain great  prejudice  by  absence,  sickness,  or  other  incapacity  to  make 
leases  when  any  of  the  former  leases  were  expired  ;  and  such  leases  at 
A\  ill  are  for  the  benefit  of  the  lord,  and  can  be  no  ways  prejudicial  to 
him,  because  he  may  determine  his  will  when  he  thinks  fit  {b). 

Such,  however,  must  be  taken  to  be  strict  tenancies  at  will;  other- 
T\ise,  as  general  tenancies  at  will  are  construed  to  be  tenancies  from 
year  to  year,  and  half  a  year's  notice  to  quit  is  required,  before  a  te- 
nant can  be  ousted,  such  tenancies  might  prove  very  prejudicial  to  the 
lord's  interest. 

But  if  the  bailiff  of  a  manor  hath  a  special  power  to  make  leases  for 
years,  as  he  ought  to  make  them  in  the  name  of  his  master,  so  they 
ought  to  be  made  in  waiting,  that  the  authority  may  appear  to  be  pur- 
sued ;  a  parol  lease  such  bailiff  has  no  power  to  make  (c). 

O)  Bac.  Air.  tit.  "  teases,"  (.1.  8.;.  (h)  Ibid.  (c)  Bac.  Abr.  vt  ai\fe. 


CHAPTKK   \V. 

To  whom  JjCUsis  inaij  Ix:  made. 


EVKRV  person  is  capable  of  hiin^'  a  leasee,  unless  rendered  incom- 
pclint  Ijy  some  legal  disabilily  ;  such  as  inlaucy,  coverture,  insanity, 

At. 

Spiritual  pf  rsons.-^Uy  13  G.  3.  r.  Sk  (which  recites  the  21  If.  8. 
r.  13.)  it  is  maile  lawful,  from  and  after  the  passing  of  the  act  (//////  7, 
1803)  for  any  spiritual  person  to  take  to  farm  to  himself,  or  to  any  per- 
son or  persons  to  his  ii5e,  by  lease,  grant,  words  or  olhcrwi;«e,  for  term 
of  life,  years,  or  at  will,  any  messuage,  mansion,  or  dwolling-house, 
V  ith  or  without  orchards,  gardens,  or  other  ai)piirtcnanci'S,  although 
not  in  any  city,  borough,  or  town  ;  and  any  spiritual  person  having  or 
holding  any  [benefice,  IG  G.  3.  r.  109.  s.  J.J  donative,  perpetual 
curacy,  or  i>arochial  ehapelry,not  having  sulhcicnt  or  convenient  gitbe 
or  tlemcsne  lands  annexed  to,  or  in  right  of,  or  by  reason  of  his  benefice 
or  cure,  or  chapclry,  or  any  stipendiary  curate,  or  un!)cncficed  spiritual 
person,  wilJi  the  consent  in  writing  of  the  I)isIiop  of  tlie  diocese,  may 
take  to  farm  to  himself,  or  to  any  person,  to  liis  nsc  for  a  limilcd  term 
of  years,  any  farm  or  farms,  lands,  tenements,  or  hereditaments,  that 
may,  under  all  the  circumstauccs,  appear  to  such  bishop  proper  to  be 
taken  or  occupied  l)y  such  sjjiritual  person,  for  the  convenience  of  his, 
household  and  hospitality  only,  without  being  Jiabic  to  any  penalties, 
^•r.  under  the  recited  Act,  or  any  other  Acts  by  reason  thereof:  pro- 
vided that  nothing  herein  shall  authorize  any  non-residence  of  any  such 
spiritual  person  as  aforesaid.     4.  1. 

And  it  sliall  be  lawful  for  any  spiritual  person  or  person^,  by  him- 
self or  tiicmselves,  or  any  other,  to  his  or  their  use,  to  have,  hold,  use, 
or  occupy  in  ferm,  any  manors,  lands,  tenements,  or  hereditaments, 
demised,  leased, or  granted  to  him,  or  them,  or  his  or  their  property 
and  estate,  or  to  take,  purchase,  recci\'c,  or  hold,  as  liie  properly  and 
estate  of  such  spiritual  person,  any  lease  or  leases  for  life  or  lives,  or 
for  term  or  terms  of  years,  absolute  or  determinate  on  any  lilV  or  lives, 
or  to  take  any  annual  rent,  or  »)thor  annual  adviintage  or  profit  by 
occasion  of  any  lease  or  ferm  of  luiy  manors,  A'-r.  the  property  or  estate 
of  any  such  spiritual  person  or  j)Prsons  ii«  Ion:;;!i--  to  him  or  them, 
either  in  his  or  their  own  right,  or  in  right  of  any  other  person,  or  by 
reason  of  his  or  their  holding  any  spiritual  dignity  or  beneficence,  or  so 
taken,  purchased,  <?r.  as  atorfsaid,  as  the  property  or  estate  of  such 
spiritual  person,  notwithstauiling  the  said  recited  or  any  other  Act  : 
Provided  that  notliing  her..'in  contained  shall  authorise  uny  spiritual 


9l>  To  nhom   Leasts  may  be  made.         [Clia]).  IV^. 

person  liulding  any  dignity,  prebend,  Ijenefice,  dbnalive,  perpetual 
curacy,  or  parocliial  cliajieiry,  or  serving  a  stipendiary  curacy,  to  take, 
receive,  or  hold  any  manors,  <<rr.  after  the  passing;  of  tliis  Act,  for  the 
purpose  of  occupying  or  to  occupy  the  same,  for  the  cultivation  thereof, 
or  procuring  profit  therefrom,  hy  liimself,  or  any  hailifl  or  servant,  to 
liis  use,  unless  the  same  sliail  have  been  taken,  received,  or  holden  un- 
der a  lease  granted  to  such  person  on  or  before  the  first  day  oi  Januan/ 
1803,  or  unless  by  the  consent  in  writing  of  the  bishop  as  aforesaid. 
s.  5. — And  by  s.  6.  such  spiritual  persons  are  authorized  to  buy  or  sell 
cattle  or  corn  for  the  occupation  or  profit  of  such  farms,  cVr.  so  holden. 
Provided  that  they  do  not  buy  or  sell  any  cattle  or  corn  in  person  in  any 
market,  fair,  or  place  or  public  sale. 

And  any  spiritual  person  having  any  vicarge  or  perpclual  curacy,  or 
any  stipendiary  curate  thereof  may  occi!})y  l)y  himself  or  any  other  to 
his  use,  the  im})roprIate  parsonage,  rectory,  or  vicarase,  or  any  part 
thereof,  or  take  any  profit  or  rent  out  of  such  farm,  notwithstanding 
the  said  recited  or  any  other  act.  liut  if  such  improy)riate  parsonage, 
rectory  or  vicarage,  or  such  part  thereof,  shall  not  have  been  occupied 
at  any  time  before  the  passing  of  this  Act,  by  the  same  or  any  other 
such  spiritual  person  as  aforesaid,  such  person  shall  remain  lialjle  to  the 
penalties,  /st.  imder  the  jaid  recited  or  any  other  Act,  unless  he  shall 
have  obtained  the  licence  of  the  l.dshop  for  such  occupation,  s.  8. 

And  any  clergyman  Vvho  shall  be  licensed  or  be  exempted  from  resi- 
dence under  this  or  any  other  Act,  may  take  to  ferm  and  occupy  in  the 
parish  where  he  resides,  or  any  adjoining  parish,  such  lands  for  the 
convenience  of  his  household  and  hospitality  only,  as  the  bishop  may  in 
writing  allow,  s.  9. 

All  contracts  or  agreements  made  after  the  passing  of  the  Act  for 
letting  houses  in  which  any  spiritual  persons  shall  be,  by  order  of  the 
archbishop  or  bishop,  required  to  reside,  shall  be  void  ;  and  persons 
holding  possession  after  th6  day  appointed  by  such  order,  shall  forfeit 
40s.  for  each  day  he  shall  so  hold  over,  such  pciialty  to  be  recoverable 
by  action  cf  debt,  <S'v.  in  any  court  of  record  at  JFcsfminstcr,  or  the. 
courts  of  great  sessions  in  Wales,  and  to  go  to  such  person  who  shall 
inform  and  sue  for  the  same,  together  with  costs :  but  in  case  of  such 
contracts  or  agreements  made  before  the  passing  of  the  Act,  no  such 
penalty  shall  be  incurred  for  three  months  from  the  service  of  the  copy 
of  such  order  as  aforesaid  upon  such  occupier  or  at  such  house  of  re- 
sidence; but  after  such  period  the  person  continuing  to  hold  shall 
forfeit  40.S.  for  each  day's  continuing  to  hold  over  as  aforesaid,  s.  o4i.  12. 
No  penalty  for  farming  shall  be  incurred  under  this  or  any  other 
statute,  till  the  oth  day  oiJpnl,  J804;  nor  shall  this  Act  deprive  any 
spiritual  persons  of  any  privileges  they  enjoyed  under  the  said  recited 
Act  or  otherwise,  s.  43.  1 1. 

/.■ifcnl.^: — In  debt  Ivr  r  lit  tlie  (Jef^-ndanl  pleaded  infancy  at  the  time 


Chnp.  IV.]  To  II  horn    /jiasrs  may  he   mnilr.  1)7 

of  the  lease  mad  (t ;  and  upon  tlrminnr,  tlie  Cimrt  hrld  llic  kn^o  mid- 
«///r  only  at  liis  chrtion  ;  for  if  it  «ne  fo^lli^  Jx-ndit,  it  bhall  he  no 
ways  void,  l)iit  the  infatit  ut  liis  Hf-ction  may  Jii.ikfc  it  V(jii!,  I>y  ri'fn^ 
ini?  and  u Hiving  the  land  hcfoic  the  rent-day  eomrs  ;  in  which  cnfe  tx* 
action  of  dcl»t  would  lie  aguii^l  hini ;  Ixit  tiw  defendant  not  haviii-  h> 
done,  and  Ijcing  of  ai;e  l»pfore  the  rcnl-day  due,  and  it  not  hein^  siievin 
to  tlie  court,  that  in  this  case  the  reul  was  of  ij'ieater  vdliic,  the  j)Jaiii- 
tiJliiad  judgment  (</). 

If  a  person  jointly  interested  with  an  infant  in  a  lease,  obtain  a  re- 
newal to  hiniH-lf  only,  and  the  lease  prove  beneficial,  he  sliill  be  held 
to  have  acted  as  trustee,  and  the  infant  may  claim  his  share  of  the  t>e- 
iiefit  J  but  if  it  do  not  prove  bcneHcial,  he  nuist  take  it  upon  himself. 
IJiis  h  t]it  peculiar  privilege  of  the  un[)rolccled  situation  of  an  in- 
fant (/v). 

Where  a  lease  to  a!i  infant  however  is  not  !>y  deed,  lie  w ill  prrhaps 
be  liable  at  all  events  for  use  and  occupation  of  the  premise?  in  which 
be  rciiidcs  ;  for  he  is  liable  for  necessaries,  under  which  description 
iodj^ing  must  surely  come :  w  herefore  sucli  case  would  probdbly  l>e 
held  to  fall  within  the  fair  liabilily  w  Inch  the  law  imposes  on  infants 
of  beiiiq  bound  for  necessaries,  which  is  a  relative  lenn,  accordin-  to 
their  station  in  life  (r). 

I'lmrs-Covcrl. — A  fcnie-coverl  cannot  l)e  a  lessee,  for  her  free  ap;cncy 
is  so  suspeiuled  during  coverture,  that  she  may  plead  non  est  J'aiium  lo 
an  action  on  any  covenant  in  the  lease,  for  evidence  that  she  was 
covert  at  the  time  of  executing  the  lease,  w  ill  prove  itto  be  not  her  deed. 
For  use  and  occupation  of  premises,  htr  baron  will  be  liable  (</). 

Jiirns. — \\  i\.\\  respect  to  aliens,  the  statute  of  ,ii  II.  8.  c.  10.  s.  IJ. 
makes  all  leases  of  any  dwelling-house  or  shop,wiluin  this  realm  or  any 
of  the  king '."-dominions,  made  to  any  stranger,  arliticcr,  or  handi  rafis- 
man  born  out  of  the  king's  obeisance,  not  being  a  denizen,  void  and  of 
none  e/Iect  (<).  This  statute  may  be  pleaded  in  l»;a-  to  an  action  of 
debt  for  rent,  brouglit  against  an  executor  or  adniiiiistrator  ;  but  in 
j)leading  it,  it  seems  necessary  to  aver  that  the  messuage  demised  was 
a  dwelling  house  or  shop.  A  place  need  not  be  alleged  wliere  he  w  as 
an  alien  and  an  artificer  (/). 

The  above  mentioned  statue  is  still  in  force  ;  but  tho'.tilrh  it  nnk.-s 
/cases  of  dwelling-houses  or  shops  granted  to  any  stranger  Jirtiticer  voi«|, 
yet  if  such  artificer  occupy  a  dwelling-house  or  shop  mider  an  agrcc- 
vient  which  docs  not  amount  to  a  lease,  as  if  he  be  tenant  from  3'ear  to 
year,  or  for  a  shorter  time,  an  action  for  use  and  occupalionv.  ill  Ji>- 
against  him  notwithstanding  the  statute  (i,). 

(a)  Bull    N.  P.  177.    Cro   Js,   ::n.  ;,  ■  i  i;,„.  fc  p.^|  ■:.:<■ 

(c)  8  T.   K.  578.  f  rf>  tro  Jjr    173.  i-i 

C/)  I   Skiiml.  y  D   2.  fj)  UM    n    I 


^8  To  iihom  Leases  may  be  made.       [Chap.  IV. 

An  alien  tlierefore  is  incapable  of  being-  party  to  a  lease ;  for  being 
born  in  a  foreign  country  out  of  allegiance  to  the  king,  the  policy  of 
the  laws  has  placed  every  obstacle  in  his  way  to  prevent  him  from  ac- 
quiring possessions  and  the  influence  that  accompanies  them,  in  a  coun- 
try that  does  not  claim  his  allegiance,  and  with  the  interest  of  which 
he  is  unconnected.  The  exceptions  to  this  wise  principle  of  exclusion 
are  created  only  by  the  consequences  of  commerce  :  for  the  convenience 
of  trade,  therefore,  an  alien  friend  is  now  permitted  to  acquire  a  pro- 
perty in  goods,  money,  and  other  personal  (not  real)  estate  ;  and  he 
may  hire  a  house  for  his  habitation  for  the  greater  convenience  of  car- 
rying on  his  trade,  but  he  cannot  assign  or  dispose  of  his  interest  in  it, 
even  to  a  natural-born  subject. — The  general  naturalization  act  for  all 
foreign  protestants,  however,  which  was  carried  into  execution  by  stat. 
7  Ann.  c.  5.  it  was  found  necessary  to  repeal,  after  three  years'  expe- 
rience, by  stat.  10  Jnn.  c.  5.  except  the  clause  for  naturalizing  the  chil- 
dren of  English  parents  born  abroad ;  and  the  impolicy  and  injustice 
of  putting  foreigners  upon  the  same  footing  as  the  subjects  of  the 
country,  are  probably  sufticiently  manifest  to  prevent  any  similar  ex- 
periment in  future. 

An  alien  may  indeed  take  by  purchase ;  but  then  it  is  for  the  benefit 
of  the  crown :  unless  the  crown  however  interpose,  he  may  maintain  an 
action  for  lands  purchased  by  him  (a). 

But  there  is  no  instance  where  a  woman  alien  is  in  possession  of  an 
estate,  but  that  it  nmst  be  for  the  benefit  of  the  crown  ;  and  the  hus- 
band by  marrying  her  cannot  be  said  to  be  seised  of  such  estate  (^). 

But  though  an  alien  cannot,  as  such,  take  a  lease  of  a  dwelling- 
house  or  shop,  by  reason  of  the  statute  32  //.  8.  c.  IG.  yet  he  may  oc- 
cupy a  tenement  of  10/.  a  year,  and  carry  on  liis  trade  there  like  any 
other  person  :  and  as  he  may  do  so,  he  has  that  interest  v/hich  enables 
him  to  gain  a  setllement  by  the  provision  of  the  legislature  {<). 

All  children  born  out  of  the  king's  dominions,  whose  fathers,  (or 
grandfathers  by  the  father's  side)  were  natural  born  subjects,  though 
their  mothers  were  aliens,  are  now  by  various  statutes  deemed  to  be 
natural  born  subjects  themselves  to  all  intents  and  purposes,  unless  their 
said  ancestois  were  attainted  ;  arc  banished  beyond  sea  for  high  trea- 
son ;  or  were  at  the  birth  of  sucli  children  in  the  service  of  a  prince  at 
enmity  with  Great  Britain.  But  grandchildren  of  such  ancestors  shall 
not  be  privileged  in  respect  of  the  alien's  duty,  except  they  be  protes- 
tants, and  actually  reside  within  the  realm;  nor  shall  l;c  enabled  to 
cl;um  any  estate  or  interest,  unless  the  claim  be  jnade  within  five  years 
after  the  same  shall  accrue. 

The  issue  of  an  English   woman  by  an  alien,  born  abroad,  is  an 
alioi. 

fa)  2  Atk  '.'.Da      iBts.  St  Pul.  48.  (t)  2  AU:.  3?'S  (c)  4Eai,l'3n.   107. 


Qiap.  IV.]         To  nhoin   focuses  may  br  mmJe.  09 

The  childrrn  of  alii  ii.<  born  in  l'',n;!;I;uid  arc,  generally  speaking, 
natuial  born  Mibject-,  and  enlilled  to  all  tlie  |>ri\  ileges  of  su<"li  ((i). 

Dtiiizcm — A  denizen  is  an  alien  born,  but  who  has  obtained,  ex 
donationc  reikis,  letters  patrnt  to  make  him  an  l.nt^lish  snbjcet,  an  high 
and  inconinuniicablc  branch  of  the  royal  j)rerogative.  A  denizen  h  a 
kind  of  middle  state,  between  an  alien  and  a  natural  burn  subject,  and 
partakes  of  both  of  thcni  (A). 

He  may  take  lands  by  pnrcliascor  devise,  which  an  alien  may  not, 
but  cannot  take  by  inheritance. 

A  denizen  therefore  may  be  a  lessor  or  lessee,  for  the  chief  inca- 
pacity which  lie  retains  regards  tlie  defect  •►f  inheritable  blood,  so  that 
in  other  respects  iiis  situation  may,  in  a  t;reat  dei^rec,  be  assimilated  to 
that  of  a  bastard,  tiecaiuiot  however  take  any  grant  of  lands,  <§-c. 
from  the  crown;  nor  sit  in  a  council,  or  in  cither  house  or  parliament  (r). 

Naturalization  cannot  be  performed  but  by  act  of  parliament ;  for  by 
this  an  alien  is  put  in  the  same  state  as  if  he  had  been  born  in  the 
king's  ligeance ;  except  only  that  by  the  stat.  12  W.  3.  he  is  incapable, 
as  well  IS  a  denizen,  of  being  a  member  of  the  privy  council,  or  of 
either  house  of  i)arliamcnt,  holding  ofliccs,  taking  grants  of  the 
crown,  Sec. 

(a)  J  BI.  Cora.  37:3.  (I>)  7  Rer  25,  's)  ?♦.  12  w.  r.  c  r 


L    1^0    J 

CHAPTER  \  . 

Of  Ihc  subject  matter  of  Leases. 

Section:  1.     Of  corporeal  Heredilamcnts  ;  ivherein  of  Farms, 
Lands,  Houses,  and  Lodgings. 

S?FX'TioN    II.      Of    incorporeal    Hereditaments  j    ti herein  of 
Tithes,  Tolls,  Advowsons,  Rent,  SCc. 

Section  I.     Of  corpore-cd  Hereditaments 

AFTFRsnch  time  as  leases  for  years  began  to  he  looked  upon  as 
fixed  and  peraiarunt  interests,  and  that  the  Jescees  v/ere  sutFicient- 
\y  provided  to  defend  tliemseives  and  their  possessions  against  the 
acts  and  incroachn-ents,  as  ^\elI  of  the  lessor  as  of  strangers,  men 
found  it  their  interes*  to  improve  and  encourage  this  sort  of  property, 
and  therefore  extended  it  to  all  sorts  of  interests  and  possessions 
whatsoever,  being  led  thereto  by  that  known  rule,  that  whatsoever  may 
be  p-rantcd  or  parted  with  for  ever,  maij  be  granted  or  parted  n'Uh  for  a 
time  (n). 

Not  only  lands  and  houses,  therefore,  have  been  let  for  years,  but  also 
gooUs  and  chattels ;  though  the  interest  of  the  lessee  therein  differs 
from  the  hiterest  he  hath  in  lands  or  liouses  so  let  for  years ;  for  if  one 
lease  for  years  a  stock  of  live  caltie,  such  lease  is  good,  and  the  lessee 
hath  the  use  and  profits  of  them  during  the  term  ;  but  yet  the  lessor 
hath  not  any  reversion  in  them  to  grant  over  to  another  either  during 
tlie  term  or  after,  till  the  lessee  halh  re-dciivcred  them  to  him,  as  he. 
^^■ouId  have  of  lands  in  case  of  such  lease  for  years  ;  for  the  lessor  hath 
only  a  possibility  of  property  in  case  they  all  outlive  the  term  ;  for  if 
any  of  them  die  during  the  term,  the  lessor  cannot  have  them  again 
after  the  term,  ami  during  the  term  he  hath  nothing  to  do  w  ith  them, 
and  consequently  of  such  as  die,  the  property  rests  absolutely  in  the 

lessee  (6). 

So,  whether  they  live  or  die,  yet  all  the  young  ones  coming  of  them, 
as  lambs,  calves^  <^V.  belong  a])so!utcly  to  the  lessee  as  profits  arising 
and  severed  from  the  principal,  since  otherwise  the  lessee  would  pay  his 
rent  for  nothing  ;  and  therefore,  this  di.Ters  from  a  lease  of  other  dead 
goods  and  chattels,  for  there,  if  any  thing  be  added  for  the  repairing, 
mending,  or  improving  thereof,  the  lessor  shall  have  the  improvements 

(a)  Bau.  A.br.  lit.  ••  Leases."  (A.)  (6)  Ibid. 


'^Sect.  I.]  Of  cor^mrml  Ilcredilamciils.  101 

iirul  adilitions  to<;ctht'r  with  the  pi  incipii!,  after  the  lease  ended,  becunse 
they  cumiot  be  severed  without  destroyliiij  or  spoiling  the  princi|-ul: 
neither  is  the  succession  of  younu;  ones,  in  case  any  of  the  old  ones  die, 
to  be  resembled  to  a  corporation  ai^q^rCijate,  uhereof  when  any  die, 
those  tliat  succeed  sliall  be  said  to  be  part  of  tiie  same  corporation,  for 
the  cnri)oratioii  in  its  public  capacity  never  dies;  but  this  being  a  lease 
of  such  and  such  individual  cattle,  when  any  of  tiiem  die,  the  possibi- 
lity of  reverting  property,  whicli  was  left  in  the  lessor,  is  dett;nnincd, 
and  at  an  end.  Hut  the  lessee,  in  such  case,  cannot  kill,  destroy,  sell, 
♦)r  give  them  away,  during  the  term,  without  bciu;^  subject  to  an  action 
of  trespass,  as  it  should  seem  {^a). 

Touching  the  import  of  the  word  "  Lereditanient,"  Lor<l  K/rn/on  ob- 
served (AJ,  that  it  was  not  so  strong  a  word  as  tenement  ;  bol  was 
jnerely  a  de.scri[ition  of  the  thin;;;  itself,  and  not  tiie  quality  of  it  or  in- 
terest iti  it :  and  this  accords  with  the  diflTereiice  taken  between  the  t\No 
vords  hitnditas  and  luvrcditmncnlum  ;  for  the  word  lutrcditas  imports 
the  estate  which  a  man  has  in  the  land  ;  hccrrditamcjitum  the  land  itself 
■which  may  be  inherited,  and  therefore  cannot  be  applied  to  the  estate 
in  the  land  (r).  Holt,  C.  J.  however  says  the  word  '*  hereditament'* 
implies  a  fee  (r/) :  wiiich  is  consonant  to  Sir  E.  Cokeys  exposition  of  the 
word,  which  he  says  is  by  much  the  largest  and  most  comprehensive 
expression;  for  it  includes  not  only  lands  and  tenements,  but  whatso- 
ever may  be  inherited,  be  it  corporeal,  or  incorporeal,  real,  personal,  or 
mixed  (r). 

Corporeal  hereditaments  consist  wholly  of  substantial  and  })ermanent 
objects;  all  which  may  be  comprehended  under  the  general  denomina- 
tion of  lantl  only;  (or  land  comprehends  in  its  legal  signihcation,  any 
ground,  soil,  or  earth  whatsoever ;  so  the  word  'land"  includes,  not 
only  the  face  of  the  earth,  but  every  thing  under  it,  or  over  it ;  and 
therefore,  if  a  man  grant  all  his  lands,  he  grants  thereby  all  his  mines 
of  metal  and  other  fossils,  his  woods,  his  waters,  and  his  houses,  as  well 
as  his  fields  and  meadows :  not  but  that  the  particular  names  of  the 
things  arc  equally  sudicient  to  pass  them,  except  in  the  instance  of 
water;  by  a  grant  of  which,  nothing  passes  but  a  right  of  tishing,  and 
to  recover  the  land  at  the  bottom  of  which,  it  must  be  called  so  many 
"  acres  of  land  covered  with  water.*'  But  the  capital  distinction  i«  tliis; 
that  by  the  name  of  a  castle,  messuage,  toft,  croft,  or  tJie  like,  nothing 
else  will  pass,  except  what  falls  with  the  utmost  propriety  un<lcr  the 
term  made  use  of,  (though  indeed,  by  the  name  of  a  ca'-tle,  one  or 
more  manors  may  be  conveyed;  anti  l  convcrso,  by  the  name  of  the 
manor,  a  castle  may  pass)  ;  but  by  the  name  of  land,  which  is  nonien 
gcncralissimum,  every  thing  terrestrial  will  pass  (/). 

(a^  Bac.  Abr.  tit.  "  Lci-es  "  (A\  (t)  8  T    R    VCJ.  (c)  1  Cotr.  R.  IM. 

(rf)  Holt  ?3-V  (e)  Co  IM.  13.  :o.    1  Bt    Cnm  17    Shep.  Touch    91 

(/)  2  ni.  Coia.  18. 

15 


102  Of  corporeal  Hereditaments.  [Chap.  V. 

Leases  for  life,  or  years,  or  at  will  (now  construed  to  be  from  year  to 
5'ear),  may  be  made  of  any  thins*  corporeal  or  incorporeal  that  lieth  in 
livery  or  grant  (n). 

A  man  therefore  may  demise  his  farm,  which  may  comprehend  a 
messuage  and  much  land,  meadow,  pasture,  wood,  i^c.  thereunto  be- 
longing, or  therewith  used ;  for  this  word  doth  properly  signify  a  ca- 
pital or  principal  messuage,  and  a  great  quantity  of  demesnes  there- 
unto appertaining  (^). 

So,  by  the  name  of  a  messuage,  he  may  pass  a  house,  a  curtelage,  a 
garden,  an  orchard,  a  dove-house,  a  shop  or  a  mill,  as  parcel  of  the 
.same;  the  like  of  a  cottage,  a  toft,  a  chamber,  a  cellar,  8:c.  Yet  these 
may  pass  by  their  own  single  names  also,  as  "  of  one  messuage,  one 
curtelage,  &.c.  (c)." 

If  A.  lets  a  garden  ground  for  years,  and  the  lessee  demises  part  of 
the  term  to  an  under-tenant,  who  builds  on  it,  by  a  grant  of  the  garden 
ground  the  buildings  thereon  will  pass  (<-/). 

So,  a  house;  and  in  case  of  a  lease  of  a  house,  together  with  goods, 
it  is  usual  to  make  a  schedule  thereof  and  affix  it  to  the  lease,  and  to 
have  a  covenant  from  the  lessee  to  re-deliver  them  at  the  end  of  the 
term ;  for  without  such  covenant  the  lessor  could  have  no  other  remedy, 
but  trover  or  detinue  for  them  after  the  lease  ended  (e). 

The  demise  of  a  house  "  with  the  appurtenances,"  will,  it  seems, 
pass  the  house,  with  the  orchards,  yards,  and  curtelage,  and  garden, 
but  not  the  land  (/) ;  especially  if  it  be  at  a  distance,  though  occupied 
■with  the  house,  but  if  the  lessor  had  built  a  conduit,  though  in  another 
part  of  the  land,  yet  the  conduit  would  pass  with  the  house,  because  it 
is  necessary,  et  quasi,  appendant  thereto  (,§•) :  yet  if  the  lessee  erect  such 
a  conduit,  and  afterwards  the  lessor,  during  the  lease,  sell  the  house  to 
one,  and  the  land  wherein  the  conduit  is  to  another,  and  afterwards  the 
lease  determines,  he  who  has  the  land  wherein  the  conduit  is  may  dis- 
turb the  other  in  the  using  thereof,  and  may  break  it,  because  it  was 
not  erected  by  one  who  had  a  permanent  estate  or  inheritance,  nor  made 
one,  by  the  occupation  and  usage  of  them  together,  by  him  who  had 
the  inheritance. — So,  the  demise  of  a  house,  "  and  the  appurtenances," 
will  not  pass  an  adjoining  building  not  accounted  parcel  of  the  house 
although  held  with  it  for  thirty  years  (/t).  But  in  one  case  it  was  held 
that  a  grant  from  the  crown,  of  a  house  cwnpcrtincntiis  would  pass  land 
that  was  occupied  with  the  house ;  in  this  case  however  it  should  not  be 
overlooked  that  the  point  arose  on  a  special  verdict,  in  which  the  house 
and  land  were  found  to  be  all  one  (/). 
•  \\'hcthcr  the  thing  claimed  as  appurtenant  be  accounted  parcel  or 

(a)  !=l..;p.Touch.  268.  (6)  Ibid.  93.  (c)  Ibid.  12. 

(</,  Leo  J»c.  648.        («)  Bac.Abr.  tit.  "Leases."  (A).       C/";  Cro.  Car.  57.  Cro.  Jac.  520. 
{g,  IbiJ   121.  (A)  Cro.  Car.  I7.  (»)  Ibid.  169. 


Sect,  ll.j  O/   t  near  port  id  /Itirdilaminls.  lO.i 

not,  and  the  iiitniUou  of  llic  ijuitics,  arc  llic  rules  l)y  whii  h  to  judqf 
ill  these  cases  («). 

Thus,  where  there  is  a  convcyanre  in  general  terms  of  all  that  arrr 
called  Blmk-ncrc^  every  thins;  uhlch  I)el()ni;s  to  lUnck-acrr  passes  with 
it ;  but  whether  parcel  or  not  of  the  thing  duinised  is  always  matter  of 
evidence  {!>). 

It  may  he  necessary,  however,  to  put  a  dilTerent  construction  on  leases 
made  in  populous  cities  from  that  on  those  made  in  the  country.  It  is 
knoun,  for  example,  that  in  the  nictro|>olis  dilTerent  persons  have  se- 
veral freeholds  over  the  same  spot,  (as  in  the  case  of  the  Jdclphi)  ;  dif- 
ferent parts  of  the  same  house  arc  let  out  to  different  people  ;  such  is 
the  case  in  the  inns  of  court.  It  would  therefore  he  very  extraordinary 
to  contend  that  if  a  person  purchased  a  set  of  chambers,  then  leased 
them,  and  afterwards  purcliascd  another  set  under  them,  the  after-pur- 
chased chambers  would  pass  under  the  lease  (r). 

So,  the  demise  of  premises  in  Westminster  late  in  the  occupation  of 

A.  (particularly  describing  (hem),  part  of  which  was  a  yard,  was  held 
not  to  pass  a  cellar  situate  under  that  yard,  which  was  then  occupied  by 

B,  another  tenant  of  the  lessor;  for  though /;r/;;m/flc/V  indeed,  the 
property  in  the  cellar  would  pass  by  the  demise,  yet  that  might  be  re- 
gulatcil  and  explained  by  circumstances ;  and,  as  the  construction  of  all 
deeds  must  be  made  with  a  reference  to  their  subject  matter,  it  is  riglit 
in  such  cases  to  let  in  evidence  to  shew  the  state  and  condition  of  the 
property  at  the  time  when  the  lease  was  granted  (ri). 

The  respective  apartments  of  a  house  may  be,  and  frequently  are,  let 
to  several  and  distinct  indiviiluals  ;  wliich  tenancies  are  termed  lodg- 
ings, and  the  tenants  thereof  lodgers,  respecting  which  sec  more  at  large 
hereafter. 


Section  II.     Of  incorporeal  Heridilamcnts. 

An  incorporeal  hereditament  is  a  right  issuing  out  of  a  thing  cor- 
porate, (whether  real  or  personal)  or  concerning,  or  annexed  to,  or  ex- 
ercisable within  the  same.  Incorporeal  hereditaments  are  i)rincipally 
these,  viz.  advowsons,  tithes,  tolls,  estovers,  conmions,  ways,  olHces, 
franchises,  corrodies  or  pensions,  annuities,  and  rents  (<•). 

Incorporeal  hereditaments  are  generally  speaking  capable  of  being 
demised,  and  such  demise  nuist  be  by  deed,  for  they  lio  in  grant  and 
not  livery ;  so  things  incorporeal  may  be  granted  by  copy  of  court- 
roll  (/). 

(n;  Cro.  Cir.  17.  (i)  1  T.  R.  70J.  (f)  Ibid.  703. 

rf)  IbiJ  (0  Co.  Lil    19.  20  (/)   1   T.  n.  3C0    Willci.  323.     1  IniU  ?. 


]01  Of  incorporeal  Hereditaments.  [Cliap.  Y, 

Jdvon'sons. — An  a(lvo^^  son  is  a  valuable  right,  and  properly  the  ob- 
ject of  sale ;  it  is  therefore  real  assets  in  the  hands  of  the  heir  :  but  as 
the  exercise  of  this  vlixhi  is  a  public  trust,  it  cannot,  it  ought  not,  to 
produce  any  profit. — Therefore,  though  an  advowson  may  be  granted, 
eitner  by  a  grant  by  deed  or  will,  of  the  manor,  8:c.  to  which  it  is  ap- 
pendant, ui'hout  any  exception  of  the  advowson,  in  which  case  it  will 
pass,  (for  it  is  parcel  of  the  manor,  except  in  the  case  of  the  king)  or 
by  grant  of  the  advowson  alone,  and  such  grant  may  be  either  in  fee, 
or  for  the  right  of  one  or  more  turns,  or  for  as  many  as  shall  happen 
w  ithin  a  time  limited :  yet  it  cannot  properly  be  the  subject  of  a  demise, 
for  as  no  profit  is  permitted  to  accrue,  no  rent  can  be  reserved,  nor  any 
services  performed  to  the  proprietor. 

This,  however,  does  not  seem  to  be  quite  correct :  for  there  is  no 
doubt,  (says  Mr.  Wooddeson,)  but  that  the  lessee  of  tithes,  an  advow- 
son, or  any  incorporeal  hereditament,  would  be  liable  to  an  action  of 
debt  for  the  rent  agreed  upon  (a).  So  where  lessee  for  years  of  an  ad- 
vowson was  presented  to  the  advowson  by  the  lessor,  it  was  adjudged  to 
be  a  surrender  of  his  term  (b). — Thus  it  seems  clear  that  an  advowson 
may  be  the  subject  of  a  demise  :  and  though  L.  C.  Talbot  doubted  (c) 
whether  the  word  "  tenements,"  which  had  been  said  to  carry  an  ad- 
vowson in  a  Avill,  extended  to  incorporeal  inheritances,  yet  it  appears  to 
be  the  better  opinion,  that  as  lands  and  houses  are  tenements,  so  is  an 
advowson  a  tenement  (d). 

Tithes. — Tithes  have  been  defined  to  be,  a  tenth  part  of  the  increase, 
yearly  arising  and  renewing  from  the  profits  of  lands,  the  stock  upon 
lands,  and  the  personal  industry  of  the  inhal)itants;  and  are  an  ecclesi- 
astical inheritance,  collateral  to  the  land,  and  properly  due  to  an  eccle- 
siastical person. 

A  parson  of  a  church  may  grant  his  tithes  for  years,  and  yet  they  are 
not  in  him  (e). 

By  the  statute  5  G.  3.  e.  17.  entitled  "  An  act  to  confirm  all  leases 
already  made  by  archbishops  and  bishops,  and  other  ecclesiastical  per- 
sons, of  tithes  and  other  incorporeal  hereditaments,  for  one,  two,  or 
three  life  or  lives,  or  twenty-one  years ;  and  to  enable  them  to  grant  such 
leases,  and  to  bring  actions  of  debt  for  the  recovery  of  rents  reserved  and 
in  arrear  on  leases  foi:  life  or  lives,"  any  other  person  or  persons,  having 
any  spiritual  or  ecclesiastical  promotions,  are  enabled  to  grant  such 
leases  of  tithes,  tolls,  or  other  incorporeal  inheritances,  "  which  shall 
be  as  good  and  efiectual  in  law  against  such  archbishop,  bishop,  masters, 
and  fellows,  or  other  heads  and  members  of  colleges  or  halls,  deans 
and  chapters,  precentors,  prebendaries,  masters  and  guardians  of  hos- 
pitals, and  other  persons  so  granting  the  same,  and  their  successors, 
and  every  of  them,  to  all  intents  and  purposes,  as  any  lease  or  leascB 

(a)  2  Wood.  69.  (i)  Cro.  Jar.  84.  (c)  Gas   temp.  Talbot,  1/14. 

fd)  Co.   Lit.  I'J,  20.    2  Bl.  Com.  17.     3  P.  Wins.  461.  (e)  Shey.  Touch.  241. 


•^i  1 1.  TT."]  Of  incorporeni  flfmlifanirni^.  hiir 

ilrcady  made,  onto  be  made  by  any  such  archbishop,  «\V."  by  virtue  of 
tlic  s\-\\.  S2  If.  8.  c.  28.  or  any  other  statue  then  in  beinj; ;  ami  action 
of  debt  may  be  brouc:ht  by  siirlj  hssors  for  rent  in  arrcar,  as  In  th(! 
ca^e  (»f  any  other  landlord  or  lessor. 

Tolls Tolls  als(».  may  be  let  or  mortp;aqed  (a). 

Estovers — So,  estovers  (of  which  more  hereafter)  miy  1)0  leased  : 
the  t^rantee,  therefore,  of  house-bote,  or  hay-botc,  may  let  it  to 
iriother  (//). 

Commons. — ^^'ith  resjjcrt  to  conmionc,  the  slat.  13  <7.  3  r.  81.  s.  lo, 
empowers  the  lord  of  any  manor  \\i1h  the  consent  of  three-fourths  of 
the  persons  having  ri2[ht  of  conmion  ujMin  the  wastes  and  commons 
A\  itliin  the  manor,  at  any  time  to  demise  or  lca«',  fur  any  term  or 
number  of  years,  not  exceeding  four  years,  any  part  of  such  wastes  and 
onmions,  not  exceeding;  a  twelfth  part  thereof,  for  the  best  and  most 
improved  yearly  rent  that  can  by  public  auction  be  i^ot  for  the  same; 
and  directs  that  the  clear  net-rents  shall  be  applied  to  drain,  fence,  and 
otherwise  improve  the  residue  of  the  wastes  and  commons. 

A  lessee  for  lives  cannot  accjuire  a  fee  by  encroachment  upon  the 
waste  adjoininij  the  land  demised,  tlioui^h  acconii)anied  by  thirty 
years'  uninterrupted  possession,  but  it  shall  be  intended  that  lie  incloses 
the  waste  in  right  of  the  demised  premises,  for  the  benefit  of  the  lessor 
after  the  term  expired  ;  more  especially,  ifhis  lessor  ])e  seized  in  fee  of 
the  wabte.  Acts  exercised  in  assertion  of  right  upon  one  part  of  a 
waste  are  admissible  in  evidence  against  occupiers  of  another  part  ofjthe 
same  waste  (r). 

U'at/s. — W  ays  are,  or  a  ri^ht  of  wfiy,  are  d( miscablc  with  the  land  ; 
for  thei^rantec  or  lessee  shall  have  all  the  ways,  casements,  ^;c.  which 
the  grantor  or  lessor  had  ((/). 

Therefore,  where  one  as  trustee  conveys  land  to  another,  to  which 
there  is  no  access  but  over  the  trustee's  land,  a  right  of  way  paises  of 
necessity,  as  incidental  to  the  grant  (f). 

If  a  man,  upon  a  lease  for  years,  reserve  a  way  to  himself  through 
the  house  of  the  lessee  to  a  back-house,  he  cannot  use  it  but  at  season- 
able times  and  upon  request  (/). 

OjHcrs. — An  oflicc  may  be  granted  by  way  of  lease,  provided  no 
hiconvenience  or  injury  to  the  public  is  likely  to  ensue  ;  and  it  may  be 
granted  in  fee-tail,  for  life,  or  years,  or  at  will  (if). 

Rut  an  ollice  to  which  a  trust  is  annexed,  or  which  concerns  thead- 
niini>tration  of  jtislice,  cannot  be  granted,  for  years,  for  then  it  would 
go  to  the  executor,  or  administrator,  or  ordinary,  and  mij^ht  be  seised 
upon  outlawry,  ike.  (h).  Thcrtfore  the  oflice  of  marshal  of  the  King's 
Bench  cannot  be  granted  for  years,  because  it  is  an  oilice  of  trust  and 
daily  attendance;  and  such  a  termor  for  years  may  die  intestate,  and 

(o^2T.  R.  If.!>.  (M  Shcp.  ToucSi.  322.    Rac  Abr.  lit.  "  l.pwen  "  (A.) 

(e)  1  Taunt   lf)3  (</) « Mod.  3,  U3.    Cro.  Jar.  170,  lOO.  .e;8T.,H.  SO,  46 

'.       •'■    •  '  ;•       •■         >;'         •■  ^B.  7.  kc.;  [hJlhH 


106  Of  incorporeal  Htredilamcnts.  [Chap.  V. 

then  it  wouUl  be  in  suspence  until  administration  is  committed,  which 
is  tiie  act  of  another  court  (ji). 

It  hath  however  been  held,  that  a  lease  thereof  for  years  during  the 
life  of  the  grantee  is  good  ;  for  hereby  the  danger  of  the  office  going  to 
executors  is  avoided.     It  appears  also,  that  the  dean  and  chapter  of 
IVestminstcr  made  a  lease  for  years  of  the  Gate-house  prison  [since 
pulicd  down]  and  the  lessee  had  committed  several  ofTences  f which 
amounted  to  a  forfeiture,  for  which  the  office  was  seised  :  but  no  objec- 
tion was  made  to  its  being  let  for  years.  There  seems  to  be  a  difference, 
however,  between  the  two  cases  :  the  first,  namely,  that  of  the  IMar- 
shal  of  the  King's  Bench,  (since  regulated  by  statute  13  6^  2.  c.  IT.) 
was  a  grant  from  the  crown,  in  whom  all  offices,  in  relation  to  the 
administration  of  justice,  are  originally  and  hihercntly   lodged,  and 
therefore  for  the  crown  to' grant  oat  such  office  for  years  may  be  liable 
to  the  objections  before-mentioned  ;  but  in  the  latter  case,  namely  that 
of  the  Gate-house  prison,  the  dean  and  chapter  are  the  immediate, 
grantees  of  the  crown,  and  they  have  the  office  to  them  and  their  suc- 
cessors for  ever  in  fee,  and  are  perpetual  gaolers  themselves,  and  an- 
swerable to  the  crown,  notwithstanding  any  lease  over  to  another  ;  and 
therefore  tbcy  always  take  security  of  such  under-lessee  for  their  own 
mdemnity  {J)). 

Such  offices  as  do  not  concern  the  administration  of  justice,  but  only 
require  skill  and  diligence,  may  be  granted  for  years,  because  they  may 
be  executed  by  deputies,  without  any  inconvenience  to  the  public. 

Where  one  made  a  grant  for  years  of  the  stewardship  of  a  court-leet 
and  court-baron,  it  was  held  void ^s  to  the  court-leet,  being  a  judicial 
office,  but  good  as  to  the  court-baron,  being  only  ministerial,  and  the 
suitors  judges  thereof;  but  the  grant  appearing  afterwards  to  be  for 
years  determinable  upon  the  death  of  the  lessee,  it  was  held  good  for 
both,  because  there  was  no  danger  of  its  coming  to  executors  or  ad- 
ministrators. 

An  office  cannot  be  demised  by  parol  (r). 
Dignities  and  honours  cannot  be  granted  for  years. 
Franc/iisrs. —  Franchises  maybe  demised,  except  indeed  in  some  few 
particular  cases,  as  where  the  franchise  is  a  personal  immunity,  c?'C. 
Thus  a  fair  or  market,  either  with  or  without  the  right  of  taking  toll, 
cither  there  or  at  any  other  public  places,  as  at  bridges,  wharfs,  or  the 
like,  may  be  demised.     Every  fair  is  a  market,  but  not  e  contra  (d). 

Corrodics  and  Pensions. — Touching corrodies and  pensions;  the  great 
endowments  of  lands,  rents,  and  revenues,  given  to  the  churchmen  by 
the  laity,  were  for  the  maintenance  of  hospitality  and  works  of  charity  : 
the  founders  and  benefactors  thereby  obtained  a  right  of  corrody  or 
entertainment  at  such  places,  in  nature  of  free  quarter  (e).     A  corrody 

(a)  3.Mod.  Ij-).  rt)  6  Mod.  57.     Bac.  Abr.  tit.  " Leases."  ("A  ) 

(K)  2  I.d.  Hayin.  H5X    Bac.  Abr.  tit.  "  Leases."  (A.)  (d)  2inst.  406,  221. 

f'.  2  Bl.  Co:ii.    II.     Bacon  Kng.  Gov.  h    I.  c.  !xvl. 


Sect,  rr.]  Of  rncorponnl  Jlrrcditanunts.  I»l7 

therefore  is  a  right  of  pustenancr,  or  to  roceivc  certain  aUotments  of 
food  for  one's  maintenance  ;  in  lien  of  whidi,  op])ecially  when  <U\c  from 
(•cclesia.stical  persons,  a  pension  or  sum  of  money  is  gometimof  sul)sti- 
tntcd  ;  and  these  are  chargeaMe  on  tlie  person  of  the  owner  of  the  in- 
heritance in  r(<prct  thereof.  It  is  paid,  that  a  corrocly  may  lie  due  to 
;i  conunon  person  l)y  grant  from  one  to  auollier.  A  corrody  i*-  eithrr 
I  -rtain  or  uncertain,  and  may  he  not  only  for  life  or  years,  biK  in  fee. 
Jf  one  luith  a  corrody  for  life,  he  may  let  it  to  anotiier,  or  to  the  gran- 
tor liimself  (d). 

Annuitits. — An  annuity  is  an  annual  sum  of  money  j^ranted  to  another 
in  fee,  for  life,  or  years,  uhicli  charges  the  person  of  the  grantor  only  ; 
or  it  may  he  due  l)y  prescription,  v.hirh  nhvay;  implies  a  grant  (//). 
Such  annuity  may  be  demised  l>y  way  of  assii^nment  (r). 

Rcnls. — Rents  form  the  last  kind  of  incorporeal  hereditaments:,  and 
may  he  the  subject  of  a  lease. 

The  word  rrnt,  or  render,  rrditus,  signifit.-  a  compensation  or  return, 
it  being  in  the  nature  of  an  acknowledgiTicnt  given  for  the  possession  of 
some  corporeal  inlicrilance  (d). 

Tiiere  arc  at  conmion  law  three  manner  of  rents :  rent-service,  rent* 
<  liarge,  and  rent-seek,  liciit-scrvicc  is  so  called  because  it  hath  some 
corporal  service  incident  to  it,  as  at  the  least  fealty :  for  if  a  tenant  hold 
his  land  by  fealty,  and  ten  shillings  rent,  or  by  service  of  ploiii;]ung  the 
lord's  land  and  live  shillings  rent,  these  pecuniary  rents  being  con- 
nected wi4li  personal  services,  arc  therefore  called  rent-servicc ;  and  for 
these,  in  case  they  be  behind  or  in  arrear  at  the  day  appointed,  the  lord 
may  distrain  of  common  right,  without  reserving  any  special  power  of 
distress ;  provided  he  hath  in  himself  the  reversion,  or  future  estate  of 
the  lands  and  tenements,  after  the  lease  or  particular  estate  of  the  lessee 
or  grantee  is  expired.  A  rent-charge  is  where  the  owner  of  tlie  rent 
hath  no  future  interest,  or  reversion  expectant  in  tiic  land  :  as  where  a 
man  by  deed  maketh  over  to  others  his  whole  estate  in  fce-simj)le,  with 
a  certain  rent  j)ayable  thereout,  and  adds  to  the  deed  a  covenant  or 
clause  of  distress,  that  if  the  rent  be  in  arrear,  or  behind,  it  shall  be 
lawful  to  distrain  for  the  same :  in  this  case  the  land  is  liable  to  the 
distress,  not  of  common  right,  but  by  virtue  of  the  clause  in  the  deed; 
and  therefore  it  is  called  a  rent-charge,  because  in  tliis  manner  the  land 
is  charged  with  a  distress  for  the  payment  of  it  (<;). — A  ckar  rent- 
charge  must  be  free  Irom  the  land-tax  (/). 

If  a  rent  charcre  be  grinted  in  fee  w  ith  a  clause  of  distress,  and  a 
fine  be  levied  of  the  lands,  to  the  use  and  intent  that  if  the  said  ^car/y 
rent  should  be  behind,  and  no  suflicient  distress,  the  grantee,  his  heirs 
or  assigns,  may  enter  till  the  rent  be  paid;  on  half  a  year\  rent  becoming 

(a)  New  Tfrms  of  Law.     Rac  Ahr.  tit.  "  T,euo«."  (A  ) 

(6)  Co  tit.  1.14.  b.     Com.  lii'.  tit.  "Annuity."  (A-  '  I  (n  Ibid  (E  ) 

(d)  iBl  Com    r  '-■;  Ibul.  (J)  I)6us   CM 


108  Of  incorporeal  Heredilaments*  [Chap.  Y, 

arrear,  the  grantee  ma^-  enter  ;  for  this  is  not  a  condition,  but  a  limita- 
tion to  the  use,  and  shall  be  construed  according  to  the  intent  of  the 
parties ;  and  tiie  yearly  rent  was  arrear,  when  any  of  the  half  year  \^  as 
arrear  [a). 

If  a  rent-charge  be  granted  out  of  a  lease  for  years,  it  hath  T)een  ad- 
judged that  the  grantee  may  bring  annuity  when  the  lease  is  ended  {b). 

Rent-seek  or  barren  rent,  idem  est  quod  reditus  siccus,  is  in  efiect  no- 
thing more  than  a  rent  reserved  by  deed,  but  without  any  clause  of 
distress  (r). 

There  are  also  other  species  of  rents,  which  are  reducible  to  the 
following  three.  Rents  of  assise,  which  are  the  certain  established 
rents  of  the  freeholders  and  ancient  copyholders  of  a  manoi*,  and  which 
cannot  be  departed  from  :  those  of  the  freeholders  are  frequently  called 
chief-rents,  reditus  capitales,  and  both  sorts  are  indifferently  denomina- 
ted quit-rents,  quicti  reditus  ;  because  thereby  the  tenant  goes  quit  and 
free  of  all  other  services. 

Rack-rent  is  only  a  rent  of  the  full  value  of  the  tenement  or  near 
it  {d). 

A  fee-farm  rent  is  a  rent  charge  or  rent-service,  which  is  reserved 
on  a  grant  in  fee  ;  the  name  is  founded  on  the  perpetuity  of  the  rent 
or  service,  not  on  the  quantum  (c). 

This  point  lio\\ever  is  questioned,  though  as  Mr.  Ilargrave^s  seem? 
to  us  to  be  the  better  opinion,  we  have  adopted  it.   Vide  Doug.  605. 

A  grant  of  lands  therefore  reserving  so  considerable  a  rent,  was 
indeed  only  letting  lands  to  farm  in  fee-simple  instead  of  the  usual 
terms  for  life  or  years  (/).  Since  the  statute  oiquia  cmptores,  IVestm. 
18  Ed.  1.  St.  I.  it  seems  such  grants  by  any  subject  cannot  be  made, 
because  the  grantor  parting  with  the  fee  is  by  operation  of  that  statute 
w  ithout  any  reversion,  and  without  a  reversion  there  cannot  be  a  rent- 
service  {j^). 

If  the  reservation  be  of  corn,  as  in  the  case  of  an  hospital  renewed 
lease,  where  the  reddendum  was  "  so  many  quarters  of  corn,"  it  will  be 
understood  to  mean  legal  quarters,  reckoning  the  bushel  at  eight  gal- 
lons; although  the  old  leases  before  the  statute  22  and  23  Car.  2.  c. 
12.  contained  the  same  reddendum,  and  although  till  lately  the  lessees 
paid  by  composition,  reckoning  the  bushel  at  nine  gallons  (/(). 

These  are  the  general  divisions  of  rent ;  and  the  difference  between 
them  (in  respect  of  the  remedy  for  recovering  them)  is  now  totally 
abolished  by  stat.  4  G.  2.  c.  28. ;  as  all  persons  may  have  the  like  remedy 
by  distress  for  rents-seek,  rents  of  assise,  and  chief- rents,  that  is  for 
such  as  had  been  paid  for  three  years,  within  twenty  years  before  the 
passing  that  act,  or  for  such  as  have  been  since  created,  as  in  case  of 
rejits  reserved  upon  lease  (j). 

(o)  Cro.  .lac.  :,\n.  {I)  Moor  c.  450.  (c)  2B1.  Com.  iJ. 

((/)  Harg  n.  5.  Co.  Lit  144.  (e)  B\  Com.  lU  ante.  '  (/)  2  Bl.  Coin.  43; 

(g)  Hargrave's  n.  aujira.  (A)  C  T.  R.  33«.  (»)  3  Bl.  Com.  43. 


^ctt.  II.]         Of  incnrponul  ILnditamints.  J09 

Statute  12  C.  2.  r.  21.  s.  5.  provides  that  iiotliitig  therein  contained 
fihall  t)c  coM'-tnictl  to  take  away  any  rents  certain,  or  other  8(  rvicc, 
incident  or  belon^'ing  to  tenure  in  common  socage,  or  the  fealty  and 
distress  incident  thereunto;  atul  that  such  relief  shall  \h'.  paid  in  respect 
of  fcucli  rents,  as  is  paid  in  case  of  a  tleath  of  a  tt  nant  in  coiiunon  socage. 

Oc<;aslonally  also,  acts  of  parliament  empower  the  ollicers  of  i^overn- 
mcnl  tog^rant  leases  of  the  duties  tlierehy  imposed  ;  as  the  act  12  C.  2. 
<:  2.J.  s.  2r.  rcppectini;  the  duties  of  excise  upon  ale,  hccr,  <V-c.  and 
also  r.  2o.  s.  S.  of  tlic  sanje  reiijn,  A'r. 


10 


L        11^       J 

CHAPTER  VI. 

For  whut  Term  Leases  may  be  made. 

Section  I.     Of  Terms  for  Life  and  how  created. 

Section  II.  Of  Terms  for  Years,  edtsolukly  or  on  con- 
dition, iiherein  of  the  commencement,  eluration,  and  termi- 
nation of  them  ;    and   of  the   surreneler    and   renetval  of 

Leases. 

Sectiom  I.     Of  Terms  for  Life,  and  how  created. 

WHERE  a  lease  is  granted  for  life,  it  confers  a  freehold  interest  in 
land ;  the  duration  of  which  is  confined  to  the  life  or  lives  of 
some  particular  person  or  persons,  or  to  the  happening,  or  not  liap- 
penuig,  of  some  uncertain  event  («).  But  a  demise  for  the  term  of  a 
life  or  lives,  requires  to  be  perfected  by  livery  of  seisin ;  and  the  as- 
signments of  leases  for  lives  are  commonly  made  by  lease  and  release. 

If  lands  are  demised  or  granted  to  a  man  generally,  without  denoting 
the  quantity  of  estate  intended  to  be  given,  and  livery  be  made  upon 
it,  such  demise  or  grant  to  another  generally,  by  tenant  in  fee,  shall  be 
an  estate  to  the  lessee  for  his  own  life  ;  for  his  life  is  greater  in  con- 
sideration of  law  than  another's  life ;  and  therefore  if  he  leases  to  him 
in  remainder  or  reversion  for  his  life,  he  shall  have  it  after  the  death 
of  the  lessee,  for  it  was  not  a  surrender  ;  but  if  it  be  l)y  tenant  in  tail, 
it  shall  be  for  the  life  of  the  lessor  :  for  that  is  all  he  can  lawfully  grant, 
unless  he  lease  According  to  the  stat.  32  H.  8.  c.  28  (0). 

So,  a  demise  to  another  for  a  time  indeterminate,  passes  for  life,  if 
livery  be  made  (e). 

Or  a  demise  ol  things  which  lie  in  grant,  without  livery  (d^. 

Estates  for  life  granted  absolutely,  will,  generally  speaking,  endure. as- 
long  as  the  life  for  whicli  they  were  granted  (c). 

But  there  are  some  estates  for  life  which  may  determine  upon  future 
contingencies  before  the  life  for  which  they  are  granted  expires ;  as 
where  a  lease  is  to  a  man  qnamdiu  se  bene  gcsserit ;  to  a  woman  durante 
vidu'date  or  dum  sola  ;  to  husband  and  wife  during  coverture  ;  to  y/.  as 
long  as  he  inhabits,  or  pays  such  rent,  or  till  he  be  preferred  to  such  a 
benefice,  or  till  out  of  the  profits  he  has  paid  1(X)/.  or  other  sura,  or 
during  his  exile,  if  he  be  absent  from  his  country  voluntarily,  and  not 

(«;  Cruis.  Dig.  Estate  for  Life.  (6;  Com.  Dig.  tit.  "  Estates."  CE..  1.)  and  Co.  Lit.  4!2,  fjc 

fc;  Ibid.  (rf,  Ibid.  (e)  aBl.  Com.  121. 


^cc-t.   l.J       Of  Terms  for  Lif\  nrnt  hoiv  crcdfol.  \  \  \ 

hy  edict.     In  tliest  and  such  like  cases  the  duration  of  the  estate  de- 
pends merely  uj)on  the  condition  (n). 

So,  if  the  kiii^  grants  an  office  at  will,  and  a  rent  fur  it  for  his  lifrr, 
tlie  crantcc  lias  an  estate  for  life  in  the  rent,  thoui^h  it  determines  with 
his  oflice  {!>). 

But  if  one  make  a  lease  for  life,  and  s;iy  that  if  thclcfisce  within 
one  year  piy  not  2\)s.  he  pliall  have  Ijut  a  term  for  tuo  years;  hy 
this  if  he  do  n')t  pay  the  money  he  has  only  a  lease  for  two  years,  even 
lhou;;h  livery  of  seisiii  l»e  made  upon  it  (r). 

But  wliere  a  person  devises  lands  to  his  executors  for  payment  of 
his  debts  antl  until  his  debts  are  paid,  althoui^h  the  determination  of 
such  estate  be  uncertain,  y<;t  it  is  not  an  estate  for  life;  for  if  it  were, 
it  must  determine  at  the  death  of  the  executors,  which  would  frustrate 
the  ijitention  of  the  testator,  or  all  the  debts  miijht  not  be  then  paid  : 
the  law  therefore  gives  the  executors  a  chattel  interest,  w  liich  w  ill  ^o 
to  their  e.xeculorsand  continue  until  all  the  testator's  debts  are  jjaid, 
ami  the  freehold  and  inheritance  will  descend  in  the  mean  lime  to  the 
heir.  Hut  if  a  limitation  of  this  kind  were  made  by  deed,  it  is  a  fi'ec- 
hold  conditional  (r/.) 

Of  T.ivcry  of  Seisin. — Livery  by  the  common  law,  is  necessary  to  be 
made  upon  every  grant  of  an  estate  of  freehold  in  hereditaments  corpo- 
real, whether  of  inheritance  or  for  life  only. 

J  -ivcry  of  seisin  is  either  in  deed  or  in  law. 

liivery  in  deed  is  thus  performed  :  the  lessor,  or  his  attorney,  to- 
gether with  the  lessee,  or  his  attorney,  (for  this  may  as  efl'ectiially  be 
done  l)y  deputy  or  attorney,  as  by  the  principals  themselves  in  person), 
come  to  the  land,  or  to  the  house,  ami  there,  in  the  presence  of  wit. 
nesses,  declare  the  contents  of  the  lease  on  which  livery  is  to  be  made. 
Then  the  lessor,  if  it  be  of  land,  delivers  to  the  lessee,  all  other  per- 
sons being  out  of  the  ground,  a  clod,  or  turf,  or  a  twig,  or  bough, 
there  growing,  with  words  to  this  effect,  "  1  deliver  these  to  you  in  the 
name  of  seisin  of  all  the  lands  and  tenements  contained  ii.  this  deed." 
Hut  if  it  be  of  a  house,  the  lessor  must  take  the  ring,  or  latch  of  the 
door,  the  house  being  quite  empty,  and  deliver  it  to  the  lessee  in  the 
same  form,  as  in  the  case  of  land  :  and  then  the  lessee  mu^t  enter  alone, 
and  shut  too  the  door,  and  then  open  it,  and  let  in  the  others.  If  the 
conveyance  be  of  divers  lands,  lying  scattered  in  one  and  the  same  coun' 
ty,  and  then  in  the  lessor's  possession,  livery  of  seisin  of  any  parcel  in 
the  name  of  the  residue  is  sufTicient  for  all;  but  if  they  be  in  several 
•  ounties,  there  must  be  as  many  liveries  as  there  are  counties;  for  if  the 
title  to  these  lands  comes  to  be  disputed,  there  must  be  as  many  trials  as 
there  are  counties,  and  the  jury  of  one  county  arc  no  judges  of  the  noto- 
I  i'ty  oi  a  fact  in  another.    Also,  if  the  lands  be  out  ou  lease,  though  all 

•r  (o  JMut  autc.  ;6}  Ibid.  (c)  Co.  Lit  218. 


112         Of  Terms  for  Life,  and  how  created.     [Chap.  VI. 

lie  in  the  same  county,  there  must  be  as  many  liveries  as  there  are  te- 
nants ;  because  no  livery  can  be  made  in  this  case,  but  by  the  consent 
of  the  particular  tenant,  and  the  consent  of  one  will  not  bind  the  rest. — 
In  all  these  cases,  it  is  prudent  and  usual  to  endorse  the  livery  of  seisin 
on  the  l»ack  of  the  deed,  specifying  tiie  manner,  place,  and  time  of  mak- 
ing it,  together  with  tlie  names  of  the  witnesses  {a). 

Livery  in  law  is  where  the  same  is  not  made  on  the  land,  but  in  sight 
of  it  only ;  the  lessor  saying-  to  the  lessee,  "  I  demise,  grant,  and  to 
farm  let,  such  land  unto  you,  enter  and  take  possession  (/?')."  Hete  if 
the  lessee  enter  during  the  life  of  the  lessor,  it  is  a  good  livery,  but  not 
otherwise  ;  unless  indeed  he  dare  not  enter  through  fear  of  his  life,  or 
bodily  harm  ;  and  then  his  continual  claim  made  yearly  in  due  form 
of  law,  as  near  as  possible  to  the  lands,  will  suffice  without  entry  ;  and 
sQch  continual  claim  by  tenant  for  life  is  sufficient  for  him  in  reversion 
or  remainder.  This  livery  in  law  cannot  however  be  given  or  received 
by  attorney,  but  only  by  the  parties  themselves  (r). 

If  a  lease  be  to  J.  and  B.  livery  to  one  of  the  lessees  is  sufficient  {d), 

A  lease  for  life  of  any  thing  whatsoever,  whether  it  lie  in  livery  or  in 
grant,  if  it  be  in  esse  before,  cannot  begin  at  a  day  to  come ;  for  an 
estate  of  freehold  cannot  commence  infuturo  (e). 

Therefore  if  a  lease  be  made  habendum  from  Michaelmas  next,  or  af- 
ter the  death  of  the  lessor,  or  after  the  death  of  /.  S.  to  the  lessee  foe 
life,  this  lease  would  not  be  good  (/). 

So  also  where  one  doth  make  a  lease  of  land  to  another  for  years,  the 
remainder  to  a  stranger  for  life,  in  this  case  livery  of  seisin  must  be  had 
and  made  to  the  lessee  for  years,  or  else  nothing  will  pass  to  him  in  re- 
mainder, and  yet  the  lease  for  years  will  be  good  (^).  For  if  a  man 
leases  to  A.  for  years,  remainder  to  B.  in  fee,  in  tail,  or  for  life,  he 
must  make  livery  to  J.  {h). 

But  livery  of  seisin  is  not  needful  or  requisite  to  be  had  and  made  in 
cases  where  such  estate  for  life  is  made  or  granted  of  any  lands  by  mat- 
ter of  record  ;  nor  where  such  est  rite  is  created  by  way  of  covenant  and 
raising  of  use,  or  of  exchange,  or  endowment ;  nor  where  such  estate  is  ^ 
passed  or  granted  by  way  of  surrender,  devise,  release,  or  confirmation  : 
or  by  way  of  increase  or  executory  grant ;  as  when  the  fee-simple  is 
granted  to  the  lessee  for  life  or  years  in  possession  (i). 

Neither  is  it  requisite,  or  can  be  made,  where  any  incorporeal  heredi- 
taments arc  granted  for  life.  Nor  is  it  requisite  in  some  cases,  where 
an  estate  of  freehold  is  made  of  a  corporeal  thing  ;  as  if  a  house  or  land 
belong  to  an  office,  and  the  office  be  granted  by  deed,  the  house  or  land 
passes  as  incident  thereunto.  So  if  a  house  or  chamber  belong  to  a 
corrody  (k). 

(a)  2B1.  Com.  ?15.  (b)  Tl.M.  uU.  (c)  Gilb.  L.  of  Ten. 

(d)  Com.  nig.tit.  "  PeoTnient."  (P.  I.}  (<>)  Shen.  Touch.  272.    2  BlConi.  144-314. 

(/■)  Shep.  ToiTch.  a72.  Cowp.71'5.        (sJ  il>..i.  210.        (h,  coiu.  Dig.  tit.     "  Feoffmeut."  CB.  I-i 
(i)  Snep.  Touch  2riK  (-k)  Ihiii' 


Sect.  1.]       Of  Tirms  for  Lifty  and  lion  (lUdlni.  WW 

Neillicr  is  it  iicclful,  whore  one  iloth  ^raiit  to  me  ami  my  luirs  ull 
the  trees  ijrowiiii;  on  his  j^i-ouikI  ;  for  these  will  pi^s  without  li\ery  of 
g.isiii  at  all  (n). 

'^lllMl^h,  if  a  man  make  lc:u-(s-  fur  three  liv(s,  there  niii>t  l»e  livery; 
yet  if  ten. lilt  lor  life  with  power  to  malic  leases  for  three  live^,  makes  a 
lease  accord iiii;ly,  livery  is  not  necessary  (/>). 

itnaiUfor  life  or  ccstui'/ur  vit  bct/ond scfiy  <^f .— P.y  the  I'.)  (nr.  2.  c.  G. 
Will  re  IS  divers  lonls  of  manors  and  othrrs  have  used  U)  grant  cstites  by 
copy  of  court  roll  for  one,  two,  or  more  lives,  accordin;;  to  the  custom 
of  t  heir  several  manors,  and  have  also  granted  estates  by  lease  for  one  or 
more  life  or  lives,  or  else  for  years  dclerniinahic  upon  one  or  more  life 
or  lives ;  and  it  h  ilh  ofti  n  happened  that  sneh  jicrson  or  ptr.'ons  for 
whose  life  or  lives  such  estates  have  been  granted,  have  pone  beyond 
the  i^t^i^,  or  so  absented  themselves  for  many  years,  that  the  lessors  and 
reversioners  cannot  find  out  whether  they  be  uliye  or  dead,  by  reason 
>\  liereof  such  lessors  and  reversioners  have  been  held  out  of  possoisinn 
for  many  years,  after  all  the  lives  upon  which  such  estates  depended  arc 
dead,  In  re,t;ard  tl.at  the  lessors  and  reversioners,  in  actions  for  recovery 
of  their  tenements,  have  been  put  to  prove  the  dealh  of  tlieir  tenants 
uhen  it  was  almost  im[)0ssible  to  discover  the  same;  for  ccmcdy  thereof 
it  is  enacted,  that  if  such  person  or  persons  for  whose  life  or  lives  such 
estates  have  been  or  shall  be  granted,  shall  remain  beyond  the  seas,  or 
elsewhere  absent  themselves  in  this  realm  fur  seven  ycarb  together,  and 
no  suflicient  proof  be  made  of  their  lives  in  any  action  for  recovery  of 
such  tenements  by  the  lessors  or  reversioners,  in  such  case  th*  y  sliall  be 
accounted  di  ad,  and  the  judges  shall  direct  the  jury  to  give  their  ver- 
dict accord  ii^ly.  s.   1,  2. 

IV.  \i(LiI,  that  if  any  shall  be  evicted  out  of  any  lands  or  tenements 
by  viiluc  of  this  Act,  and  afterwards  such  person  or  persons  upon 
vhose  life  or  livo<5  such  estate  or  estates  depend,  shall  return  again  from 
])eyond  seas,  or  shall  on  proof  in  such  action  as  aforesaid  be  made 
appear  to  be  living  or  to  have  been  living  at  the  time  of  the  eviction  ; 
that  then  and  from  thenceforth  tiic  tenant  or  lessee  who  was  ousted  of 
the  same,  his  or  their  executors,  administrators,  or  assigns,  may  re- 
enter, re-poss;ss,  have,  hold,  and  enjoy  the  said  landt^  or  tenements  in 
hit  or  their  former  estate,  during  the  life  or  lives,  or  for  so  long  term 
as  the  said  person  or  persons  upon  w  hose  life  or  lives  the  said  estate  or 
estatisilepend,  -hall  bo  livirij:,  and  shall,  upon  action  bronc!;ht  by  them 
against  the  lefc^u^s,  reversioners,  tenants  in  possession,  or  other  persons 
lespeclii^cly,  which  since  tiic  said  eviction  received  the  profits  of  the 
paid  iimls  oi' t  .nemenls,  recover  for  dama:;cs  the  full  prolils  thereof, 
Avith  lawfid  interest  from  the  time  he  or  they  were  o-ihttei  and  kept  out 
of  t'u;  same  lamis  or  t  iiements  ;  and  this  us  veil  in  the  case  v  here  the 
sai<l  p^i'dii  or  persons  npun  w  hose  life  or  lives  such  estate  or  ebtalcs  did 

'n    'hep    Toin-li   211 


114  Of  Terms  for  Lifcy  and  how  created,     [Chap.  VL 

depend  arc  or  shall  be  dead  at  the  time  of  bringing  such  action  ;  as  if 
they  were  Iheii  living.  5.  5. 

-^nd  by  the  G  A/m.  c.  18.  any  person  who  hath  or  shall  haveauy  claim 
to  any  remainder,  reversion  or  expectancy,  in  or  to  any  estate  after  the 
death  of  any  person  within  age,  married  woman,  or  other  person  what- 
soever, upon  atiidavit  in  the  court  of  Chancery  by  the  claimants  of 
their  title,  and  that  they  have  cause  to  believe  that  such  party  is  dead, 
and  that  his  or  her  death  is  concealed  by  such  guardian,  trustee,  hus- 
band, or  any  other  person,  may  once  a  year,  if  the  party  aggrieved 
tliinlc  fit,  move  the  Lord  Ciiancellor,  Keeper,  or  Commissioners  of  the 
Great  Seal  to  order,  and  they  shall  order  such  guardian,  trustee,  hus- 
band, or  other  person,  suspected  to  conceal  such  person,  at  such  time 
and  place  as  the  Court  shall  direct,  on  personal  or  other  due  service  of 
such  order,  to  produce  and  shew  to  such  person  or  persons  (not  exceed- 
ing two)  in  such  order  named  by  the  parties  prosecuting  the  same,  such 
minor,  married  woman,  or  other  persons  aforesaid:  and  if  such  guard- 
ian, &c.  shall  neglect  or  refuse  to  produce  and  shew  such  infant,  i^^c. 
on  whose  life  such  estate  doth  depend,  according  to  the  said  order,  the» 
the  Court  is  required  to  order  such  guardian,  Sir.  to  produce  such  minor, 
^'c.  in  Court  or   before  commissioners  by  the  Court  appointed,  at 
such  time  and  place  as  the  Court  shall  direct,  two  of  which  commis- 
sioners to  be  nominated  by  the  party  prosecuting  such  order  at  their 
costs  and  charges  ;  and  if  such  guardian,  <?-<:•.  neglect  or  refuse  to  pro- 
duce such  infant,  !kc.  in  Court  or  before  such  commissioners,  whereof 
return  shall  be  made  by  such  commissioners,  and  be  filed  in  the  petty 
bag  oilice,  in  either  of  the  said  cases  the  said  minor,  &c.  shall  be  taken 
to  be  dead,  and  it  shall  be  lawful  for  any  person  claiming  any  right, 
title,  or  interest,  in  remainder,  or  reversion,  or  otherwise,  alter  the 
death   of  such  infant,  &c.  to  enter  upon  such  lands,  8<,c.  as  if  such 
infant,  /?'c.  were  actually  dead.  5.  1. 

And  if  it  shall  appear  to  the  said  Court  by  affidavit  that  such  minor. 
Sec.  for  whose  life  such  estate  is  holden,  is  or  lately  was  at  some  cer- 
tain place  beyond  the  seas  in  such  aflldavit  to  be  mentioned,  the  party 
prosecuting  such  order  may,  at  their  costs  and  charges,  send  over  one 
or  both  the  persons  appointed  by  the  said  order,  to  view  such  minor, 
t^cc.  and  in  case  such  guardian,  &c.  shall  refuse  or  neglect  to  produce 
or  procure  to  be  produced  to  such  person  or  persons,  a  personal  view  of 
such  infant,  8cc.  then  such  person  or  persons  are  required  to  make  a 
return  thereof  to  the  Court,  to  be  filed  in  the  petty  bag  office,  and 
thereupon  such  minor,  ^r.  shall  be  taken  to  be  dead  ;  and  any  person 
claiming  any  right,  <§t.  after  the  death  of  such  infant,  &c.  may  enter 
upon  such  lands,  <<rr.  as  if  such  infant  were  actually  dead.  s.  2. 

Provided,  that  if  it  shall  afterwards  appear,  upon  proof  in  any  action 
brought,  that  such  infant,  AV.  for  v.hose  life  any  such  estate  is  holden, 
were  alive  at  the  time  of  such  order  made,  that  then  it  shall  be  lawful 


Sect.  II.]     Of  Ttnns  for    Vttirs,  al/so/u/t/i/,  \r.  i  i;* 

lor  fiicli  iiitaiil,  inarrictl  woman,  or  other  pcrMHi  h;iviii<!;  any  frlafc-  or 
interest,  dcterminaldc  ui)oii  sm  li  life,  tu  r(-e:iter  upon  the  ^^i(l  lands, 
N.C.  and  for  sucli  infant,  inarrictl  woman,  or  other  jKnon,  having  any 
estate  or  inlercsl,  deterniinahle  upon  5uch  life,  their  executors,  ad- 
iiiinistrators  or  a5fcii;ns,  to  maintain  an  action  ai^ainst  those  who  5ince 
llietuid  oriler  received  the  prolits  of  such  lijuls,  »Sr  or  their  executors 
or  administrators,  and  therein  to  recover  full  damaces  for  the  profits  so 
received  frtmi  tlie  time  that  such  inlant,  S.c.  were  ousted  of  possession. 
..  3. 

Provided  alu-ays  that  if  such  guardian,  trustee,  husband,  or  otiicr 
person,  hohlini;  or  having  any  estate  or  interest  deleriuinal>le  upon  the 
life  or  liveb  of  any  other  person  or  persons,  shall  I)y  allidavit  or  other- 
^vise  to  the  satisfaction  of  the  ('ourt,  make  appear  tint  tiiey  have  nsQd 
their  utmost  endeavours  to  procure  such  infant,  A'-r.  to  appear  in  the 
said  Court  or  elsewhere,  according;  to  the  ortler  of  the  said  Court,  and 
that  they  cannot  procure  or  compel  such  infant,  &c.  so  to  appear,  and 
that  such  infant,  AV.  is,  are,  or  uerc  living  at  the  time  of  such  return 
made  and  hied  as  aforesaid,  then  it  shall  helav.ful  for  such  person  or 
persons",  to  continue  in  pos^c^sion  of  such  estate  and  receive  the  rents 
ant!  j)rofils  thtreof  iluring  the  infancy  of  such  infant,  and  the  life  or 
lives  of  such  niarrietl  woman  or  other  person  or  persons,  on  vhose  life 
or  lives  such  estate  or  interest  depends,  as  fully  as  they  niightJi.ivc  done 
if  the  Act  had  not  been  made.  s.  4. 

And  every  person  -who,  as  guartlian  or  trustee  for  any  infant,  and 
every  husband  seisetl  in  rii^ht  of  his  \\  ile  only,  and  every  other  person 
having  any  estate  determinable  upon  any  life  or  lives,  who  after  the  de- 
termination of  such  particular  interests,  without  the  express  consent  of 
tlic  next  immediately  entitled,  sliall  liold  over  and  continue  in  posses- 
sion of  any  manors,  niessuny:es,  lands,  tenements,  or  heredifanients,  shall 
be  adjudged  trespassers :  and  the  party  entitled  and  their  executors  and 
administrators,  may  recover  in  damages  against  every  such  person  or 
per:?ons  so  hoMirii;  over  and  their  executors  and  administrators,  the 
full  value  of  the  profits  received  during  such  wrongful  possession,  s.  u. 

Sf.ction  it.  Of  7\rms  for  Years,  ahsohitrb/,  or  on  con- 
dition ;  nhrrdn  of  the  fonwiencfment,  (lurniian,  and  tir- 
niinatiuii  of  Hum  :  and  of  the  surrmdcr  and  renin il  of 
Ltascs. 

Tenant  for  term  of  year*;  shall  be,  where  a  man  lets  lands,  tene- 
ments, or  hereditaments  to  another  for  a  term  of  certain  years  ;  and 
every  estate  which  nnist  expire  at  a  period  certain  and  prefixed,  by 
whatever  words  created,  is  an  estate  for  years  (r/). 

Therefore  this  estate  is  frequently  called  a  term,  termimis^  because 

(o;  Com   \y:\  ''t    "  F.llitM"  (0    1  )  I.il  St 


116  Of  Terms  for  Years  absolutely^       [Chap.  VI. 

its  duration  or  continuance  is  bounded,  limited,  and  determined  {a). 
It  is  projicrly  called  a  terra  of  years  and  the  lease  is  made  for  ten,  a 
hundred,  a  thousand  years  and  the  like,  as  the  lessor  and  lessee  agree; 
for  the  word  "  term"  doth  not  only  signify  the  limits  and  limitation  of 
time,  but  also  the  estate  and  interest  that  doth  pass  for  that  time  {!>). 

Such  terms  are  frequently  created  for  particular  purposes,  as  to  raise 
portions,  Src.  and  when  the  purpose  is  answered,  they  attend  the  in- 
heritance ;  so,  they  are  created,  as  has  been  before  mentioned,  by  way 
of  mortgage  (r).  Lands  are  often  conveyed  in  the  nature  of  a  leise  for 
long  terms,  as  five  hundred  years,  Si-c.  in  order  to  raise  portions,  and 
for  other  purposes,  in  family  settlements,  and  such  as  are  not  account- 
ed leases,  but  terms  to  attend  the  inheritance :  no  man  has  a  lease,  for 
example,  of  two  thousand  years,  as  a  lease,  but  as  a  term  to  attend  the 
inheritance  {d).     Half  the  titles  in  the  kingdom  are  so  {e). 

An  estate  for  a  thousand  years  is  only  a  chattel,  and  reckoned  part 
of  the  personal  estate  (/). 

Therefore,  if  a  lease  be  devised  to  one,  and  the  heirs  male  of  his 
body,  yet  his  executors  shall  have  it :  for  a  term  is  but  a  chattel,  which 
cannot  be  entailed,  and  such  devisee  may  well  alien  the  term  to  whom 
he  pleases  [g). 

If,  however,  it  be  limited  to  attend  the  inheritance,  it  may  be  en- 
tailed;  though  the  entail  of  the  inheritance  and  of  the  term  be  by 
different  clauses,  or  deeds  executed  at  different  times  (A). 

Commencement  of  a  Lease  for  Years. — With  respect  to  the  com- 
mencement of  a  lease  for  years,  as  it  is  a  mere  chattel,  it  may  be  made 
to  commence  either  in  prwscnti,  or  in  futuro :  according  to  the  agree- 
ment of  the  parties ;  and  the  lease  that  is  to  commence  in  futuro,  is  call- 
ed intcrcsse  termirJ,  or  future  interest  (/). — A  lease  for  years  therefore, 
may  begin  at  a  day  to  come,  as  at  Michaelmas  next,  or  for  three  or  ten 
years  after,  or  after  the  death  of  the  lessor,  or  of  J.  S.  and  is  as  good 
as  where  it  doth  begin  presently  (/t). 

So  a  lease  to  commence  adfeslum  Ammnciationis,  after  the  determi- 
nation of  a  former  lease,  is  as  good  as  if  it  had  been  afesto^  Src  (J). 

A  lease  to  commence  after  the  determination  of  a  prior  lease,  shall 
begin  presently,  if  the  prior  lease  was  void  at  law  {m). 

So  a  lease  intended  to  commence  in  futuro,  which  misrecites  the 

prior  lease  on  which  it  depends  in  a  material  point,  shall  begin  ijumedi- 

ately  (n). 

Tljis  ride,  thai  if  the  former  lease  be  misrecited  in  the  date,  Si.c.  and 

a  new  lease  made,  to  begin  after  the  expiration  of  the  said  recited  lease, 

that  such  new  lease  shall  begin  presently,  holds  as  well  in  the  lease  it- 

(a)  2B1  Com.  143.  (h)  Shop.  Touch,  c.  I4.2C?.  (c)  1  Salk.  154. 

(d)  Cow|>.  597.  CO  7  T.  R.  7i'3.  (/)  2  F,l.  Com.  14^  (g)  Co.  R.  10.  p  87. 

(h)  1  V.  nt.  104.  U.  (i)  2  ?.\.  Com.  U\.  Sheji.  Touch.  267.  (*■;  Ibid.  272. 

(ij  Cro.  Ca. .  SM,  5112."  ( /.-;  Ibid,  \n)  Ibid.  400. 


Stct.  11.]  or  on  (\nulili(}ii,  cSV.  117 

self,  as  wlicrc  llu  jury  liml  an  ituhiiturc  of  lease,  whereby  it  is  rccilcfj, 
that  tlie  lessor  made  aicli  roinifr  lease  of  such  date  anil  under  >-ircli  rent 
without  lindini;;  il  in  fiict,  liul  only  by  way  of  i  >  ilal  in  the  deed,  such 
gecomi  ItMse  shall  iti  construction  of  l.iw  l)e  adjudged  to  ln\i;in  pn-smlly, 
though  in  the  ilecd  it  is  liniiteil  to  bey;in  after  the  cxjjiration  of  tlje  first 
lease  so  recifet!  ;  because  the  jury  do  not  actually  hnd  the  first  lease, 
but  only  a  recital  of  it  in  another  deed,  which  recital  may  be  false  for 
aught  that  appears  to  the  Court :  and  then  the  second  lease  shall  begin 
presently,  as  if  no  such  lirst  lease  were  at  all,  since  the  not  findinj^  it 
elfectually  is  as  if  there  were  none  such  made  (d). 

With  rei;ard  to  the  tlateofa  Ka*e,  it  was  fornjcrly  held  that  a  lease 
to  commence  a  datu  inclndcil  the  day  of  the  date,  hut  thai  a  die  datus 
excluded  the  day  (J>). 

Hut  it  has  since  been  held,  tliat  the  word  "  from"  may  mean  either 
inclusive  or  exclusive,  accortlin;^  to  the  context  ami  subject  matter  (< ) ; 
though  this  decision  has  been  much  questioned. 

Therefore,  where  the  plaintilf  in  ejectment  declared  upon  a  lease  for 
years,  habendum  from  the  sealing  an<l  delivery,  and  declared  that  the 
sealing  and  delivery  was  1"  Mail,  and  tliat  the  ejectment  was  the  same 
day  ;  it  was  moved  in  arrest  of  judgment,  that  the  ejectment  c.iuld  not 
be  supposed  the  same  day,  for  the  lease  did  not  begin  till  the  next  day 
ensuing  the  sealing  and  delivery.  But  the  Court  disallow  cd  the  excep- 
tion ;  for  where  the  lease  is  to  begin  from  the  time  of  the  sealing  and 
delivery,  or  generally  to  hold  for  twenty-one  years  next  following,  the 
ejectment  may  well  be  supposed  to  be  the  same  day  :  for  the  beginning 
of  the  lease  is  presently  upon  the  scaling  and  delivery  ;  and  therefore 
iicli  lease  shall  qw\  at  the  same  time  and  hour  {d). 

A  lease  "  fmni  the  day  of  tiie  date,"  and  "  from  henceforth,"  is  the 
same  thing  (r). 

Indeed,  as  to  the  date,  that  may  be  considered  either  as  an  impossible 
date,  or  an  uncertain  date,  between  which  the  general  dilfcrence  taken 
in  the  books  is,  that  if  a  lease  be  made  to  begin  from  an  impossible 
date,  there  the  lease  shall  take  effect  from  the  delivery  ;  because  it 
>uld  not  be  any  part  of  the  agreement  between  the  parties,  as  from  I'-c 
oOth  day  of  Fcbruan/y  or  tlie  32d  day  of  .■//•/-//  next  (/) : — but  where  the 
limitation  is  uncertain,  as  a  lease  made  the  JOth  day  of  October,  hnbrn- 
diim  from  the  20th  day  of  November^  w  ithout  saying  what  November 
was  meant,  whether  last  past,  or  next  ensuing,  or  what  other  Sovem- 
brr,  the  lease  is  thereby  vitiated,  because  the  limitation  was  part  of  the 
agreement,  but  the  Court  cannot  determine  it,  not  knowing  how  the 
contract  was  (^'). 

(a)  Bac.  Abr.  tit    "  Lpmm."  (I.  I.)  (6)  2  Silk.  4I3    I    Id    Ray.  8*.  (c)  Towp    7l4. 

id)  Bac    Abr.  lit.  "Leas'!*."  (1.  1.).  («)  Cro.  Jw-  2S»  (/)  Bw.  Akr.  utant*. 

tf)  I  Mod    180 

17 


118  Of  Jtrms  for   Years  ahsohiiiii/,       [Chap.  VI. 

So,  where  a  lease  is  made  to  begin  from  the  nativity  of  our  Lord 
last  past,  without  saying  from  the  feast  of  the  nativity,  this  lease  shall 
begin  presently  ;  because  it  could  be  no  part  of  the  agreement  between 
the  parties  that  the  lease  should  begin  from  the  nativity  itself,  which  is 
past  so  many  hundred  years  ago  ;  and  therefore  tor  this  impossibility  of 
relation,  the  lease  shall  begin  presently  (a)  : — but  if  it  were  to  begin 
from  the  nativity  of  our  Lord  generally,  or  next  ensuing,  omitting  the 
word  "  feast,"  Tnrsdcn  was  of  opinion  that  such  a  lease  should  be  void 
for  tlie  uncertainty  of  the  commencement ;  but  Siderfm  in  reporting 
the  case,  makes  a  qiia're,  if  it  shall  not  begin  presently  ;  and  in  truth, 
this  seems  the  most  reasonable  opinion,  for  as  to  impossibility  of  rela- 
tion, there  is  the  same  in  this  as  there  is  in  the  other,  and  therefore  by 
the  same  reason,  it  shall  begin  presently.  The  editor  of  Bacon  asks 
what  sound  reason  can  be  assigned  why  it  should  not  commence  from 
the  Christmas  intended  by  the  parties  ?  which  well  applies  to  the  lease 
to  begin  from  the  nativity  of  our  Lord  next  ensuing  ;  if  not  to  the  for- 
mer (b). 

Where  a  lessee  for  an  hundred  years  made  a  lease  for  forty  years  to 
B.  if  he  should  so  long  live,  and  after  leased  the  same  lands  to  C.  haben- 
dwn  for  twenty-one  years  from  the  end  of  the  term  of  i?.  to  begirt 
and  be  accounted  from  the  date  of  these  presents :  and  the  question 
was,  if  the  lease  to  I)e  should  be  said  to  begin  presently,  or  after  the 
terra  of  B.  ?  the  judges  were  clearly  of  opinion,  that  the  lease  to  C. 
should  not  be  accounted  from  the  time  of  the  date,  but  from  the  end  of 
the  term  oi  B.  because  by  the  first  words  it  is  a  good  leuse  in  reversion 
in  that  manner,  and  then  it  shall  not  be  made  void  by  any  subsequent 
words,  or  as  Coke  said,  the  last  words  ought  to  be  construed  to  give  an 
interest  as  a  future  interest  presently,  and  the  actual  possession  after 
the  expiration  of  the  first  forty  years  is  well  granted  by  the  first 
words  (c). 

In  ejectment  the  plaintilT  declared  upon  a  lease  made  lith  Jan.  30. 
Eliz.  from  Christmas  before  for  three  years,  and  upon  evidence  the 
plaintifi'  shewed  a  lease  bearing  date  13th  Jan.  the  same  year,  and 
proved  to  have  been  then  executed  ;  and  it  was  moved,  for  this  varia- 
tion bet\\een  the  declaration  and  the  evidence,  that  the  jury  might  be 
discharged  ;  but  Anderson  C.  J.  said  that  the  evidence  was  sufficient  to 
support  the  declaration  ;  for  if  the  lease  was  sealed  and  delivered 
13th  Jan.  it  was  then  a  lease  14th  Jan.  quod  coElerijuaticiarii  conces se- 
nnit (f/). 

A  lease  may  commence  at  one  day,  in  point  of  computation,  and  at 
another  in  point  of  interest  {e). 

1  hercfore,  a  lease  "  to  hold  from  a  day  past  for  fifty  years  then 

(a).Bac.  Abr.  «t  antt.  (fc)  SiU.  4G1.  (c)  Bac.  Al.r.  vt  nnt(. 

(d)  Bac.  Abr.  tiU  "  peases."  (L.  1.)  («)  ^  Bur.  1090. 


.Sect.  II.j  or  on  C'oiulitinn,  X(.  Jl'j 

next  ensuinu;,  llic  said  term  to  coimiuiiff  ami  l>ci;ir)  iinincilialely  aflcr 
tlic  «l(t(rmiiialii)ii  of  an  rxisliii^  lease  in  llie  same  premises,"  was  lu.t 
I'stw^mcd  uncertain  at  its  commencement  (^i). 

So,  a  Jciise  haheadum  lo  the  lessee   for    liik  life,  wliic  l»  l<  rm  ^I».ill 
bejin  after  the   ilctermination  of  a  previous  term   for  three  lives,  i-i 

500(1   (/;). 

So,  if  an  indenture  of  demise  hear /ri/c  25th  March  lo  Car.  ami  is 
delivered  the  day  of  the  date,  and  the  huhendum  is  from  and  after  the 
<lay  of  the  date  of  these  presents,  for  and  diirin,:;  the  lime  and  term  of 
seven  years  from  henceforth  next  and  immediately  follow int;,  folly  to  be 
complete  and  emled,  this  lease  l)e;?ins  in  computation  from  the  delivery 
of  the  deed,  which  was  theday  of  the  date,  and  in  uiterest  the  next 
day  after  the  date,  and  so  all  the  words  will  have  an  operation :  for  it 
appears  that  he  was  not  to  have  the  possession  till  the  next  day  after  the 
date,  by  the  words  hdbcndum  from  and  after  the  day  of  the  date,  which 
excludes  the  day  of  the  date:  but  that  the  seven  years  should  com- 
mence l)y  computation  from  the  delivery,  o/;:.  from  henceforth,  which 
refers  to  the  limitation  of  tlie  seven  years  (r). 

In  ejectment  the  plaint iil  declared,  that  /.  S.  demised  to  him  per 
guodd\  scriptitm  ohligatorium  such  lands  habcnd''  a  die  dolus  indmtura 
pro-diet^ ;  on  not  guilty  pleaded,  it  was  found  and  adjudi^ed  for  the 
plaintiir  in  Frrland  :  and  it  bcin^ assigned  for  error  here,  that  there  was 
no  time  si),  cified  \vhen  this  lease  shoidJ  begin  for  it  was  habcnd'*  a  die 
dolus  indcntura: pnvdicC  ;  and  no  indenture  was  mentioned  before,  but 
on\y  scriptum  oblii^atorimn  ;  yti  per  Curiam  it  was  resolved,  that  the 
writing  should  be  intended  an  indenture,  though  improperly  called 
scriptum  obligatorium^  for  every  deed  obligeth  ;  or  if  it  shoidd  not  be 
intended  an  indenture,  then  it  begins  presently,  as  if  it  had  been  from 
an  impossible  limitation,  as  tlie  40th  of  Sept.  or  such  like  (</). 

A  lease  of  lands  by  deed,  since  the  new  stile,  to  hold  from  the  feast 
of  St.  !Michael,  must  be  taken  to  mean  from  new  Michaelmas ;  and 
cannot  be  shewn  by  extrinsic  evidence  to  refer  to  a  holding  from  old 
Michaelmas :  [and  therefore  a  notice  to  quit  at  old  Michaelmas,  though 
given  half  a  year  before  new  Michaelmas,  is  bad]  (r). 

Hut  all  leases  for  years,  whether  they  begin  in  prascnti,  or  i/i/uturo, 
must  be  certain  ;  that  is,  they  must  have  a  certain  beginning,  and  cer- 
tain endin'^,and  so,  the  contiimance  of  the  term  must  be  certain  ;other- 
^visc  they  are  not  good  ( /'). 

Yet  if  the  years  be  certain,  when  the  lease  is  lo  take  efl'ect  in  interest 
or  possession,  it  is  sullicient,  for  vmtil  that  time  it  may  depend  upon 
an  uncertainty,  vie.  upon  a  possible  contingent  precedent  before  it 

(1)  2  Rur.   1030.  (b)  Cro.  B!iz.  269.  "■;  Rie.   A>>r    u<  antt 

{<tj  IU4.  (c;   II  Ewt.  311'.  (/     silt;..  T  :- 


120  Of  Tarns  for  Years  absoluUly,        [Chap.  VL 

begin  in  possession  or  interest,  or  upon  a  limitation  or  condition  sub- 
sequent ;  but  in  case  it  is  to  be  reduced  to  a  certainty  upon  a  contiu- 
gent  precedent,  the  contingent  must  happen  in  the  lives  of  the  parties  : 
and  though  there  appear  no  certainty  of  years  in  the  lease,  yet  if  by  re- 
ference to  a  certainty  it  may  be  made  certain,  it  is  sufficient  (n). 

As,  if  a  lease  be  granted  for  Im  enty-one  years  after  three  lives  in 
being  ;  though  it  is  uncertain  at  first  when  that  term  v  ill  commence, 
becaiise  those  lives  are  in  being,  yet  when  they  die  it  is  reduced  to  a 
certainty  (b). 

So  if  J.  seised  of  lands  in  fee,  grant  to  B.  that  when  B.  shall  pay  to 
^.twenty  shillings,  that  from  thenceforth  he  shall  hold  the  land  for 
twenty-one  years,  and  after  B,  pays  the  twenty  shillings ;  in  this  case, 
B.  shall  have  a  good  lease  for  twenty-one  years  from  thenceforth  (<:)• 

So  if  A.  grant  to  B.  that  if  his  tenant  for  life  shall  die,  that  B.  shall 
have  the  land  for  ten  years,  this  is  a  good  lease  ;  and  if  one  makes  a 
lease  for  years  after  the  death  of  C.  if  C.  die  w  ithin  ten  years ;  this  is  a 
good  lease  if  C.  die  within  the  ten  years,  otherwise  not  (d). 

So,  if  a  lease  for  years  be  made  of  land  in  lease  for  life,  to  have  and 
to  hold  from  the  death  of  the  tenant  for  life  ; — or  to  have  and  to  h  Id 
from  Michaelmas  next  after  the  death  of  the  tenant  for  life  ; — or  from 
Michatlmas  next  after  the  determination  of  the  estate  of  the  tenant  for 
life  ;  these  are  good  leases  {c). 

Even  if  one  make  a  lease  to  l)egin  9fter  the  death  of  /.  S.  and  to 
continue  until  Michaelmas,  which  shall  be  Anno  Domini  1650,  this  is  a 
good  lease  (/). 

So,  if  a  man  make  a  lease  to  B.  for  ninety  years,  to  begin  after  the 
death  of  J.  on  condition  to  be  avoided  upon  the  doing  of  divers  acts 
by  others;  and  afterwards  makes  another  lease  of  the  land,  habtndnm 
after  the  determination  or  redemption  of  the  former  lease ;  it  seems  this 
is  a  good  lease  and  certain  enough  (^). 

So,  if  a  man  have  a  lease  of  land  for  an  hundred  years,  and  he  make 
a  lease  of  this  land  to  another,  to  have  and  to  hold  to  him  for  forty 
years,  to  begin  after  his  death  ;  this  is  a  good  lease  for  the  \\hoIe  forty 
years,  if  there  shall  be  so  many  of  the  hundred  years  to  come  at  the 
time  of  the  death  of  the  lessor.  So  if  he  grant  all  his  estate,  or  all  his 
term,  or  all  his  interest,  in  the  premises  of  the  deed,  and  then  say,  to 
have  and  to  hold  the  land,  Src.  to  the  grantee  for  all  the  residue  of  the 
term  of  an  hundred  years  that  shall  be  to  come  at  the  time  of  his  death  ; 
by  this  the  Avhole  estate  and  interest  of  the  grantor  in  the  land  doth 
pass  presently,  by  tlrese  words  in  the  deed  :  and  if  in  this  case  the  lessee 
for  an  hundred  years  make  a  lease  of  the  land,  to  have  and  to  hold 
after  his  death  for  an  hundred  years ;  this  will  be  a  good  lease  for  as 

(a)  Shep.  Touch.  27i'.  (^h)  a  T.  R    463.  W  Sliep.  Touch.  273. 

•dj  Ibid  it)  ll.irt.  bf)  lbi<J.  fe)  I  Old.  27d. 


Sect.  II.]  vr  on  Condi f ion,  i^'r.  Ml 

niiny  of  the  first  hundred  years  as  sliall  Ur  to  come  at  tlir  f  imf  of  his 
death  (^M. 

So,  if  -V.  (loth  make  a  lease  nfland  to  //.  for  .s«»  many  years  us  H.  hatu 
in  the  manor  of  Dale,  and  />'.  h;illi  tli<ii  a  U-.ASt  for  ten  years  in  such 
manor  ',  thi^  is  a  good  lease  for  ten  ytar.-  {l>). 

So,  if  a  lease  he  ma<le  durini;  the  minority  of  J.  S.  or  until  J.  S. 
>]ull  come  to  the  ai^e  of  iwenty-one  years,  thefc  are  «50od  leases ;  atid 
if  J.  S.  die  hefore  he  come  to  his  fidi  ape,  tlie  lease  is  ended.  So,  if  a 
nnn  make  a  lease  for  twenty-one  yiars,  if  J.  S.  live  so  long  ;  or  if  the 
c(»vrrture  between  J.  S.  and  I).  S.  shall  so  Umy;  continue ;  or  if  /.  .V. 
shall  continue  to  be  parson  of  Dale  so  long  ;  these  and  such  like  leases 
are  .i;ood  (r). 

If  one  makes  a  lease  to  7.  for  t»venty-one  years,  and  after  makes  ano- 
ther lease  to  IL  for  years,  to  begin  from  the  end  and  expiration  of  the 
aforesaid  term  of  twenty-one  ye;irs  demised  to  J.  ;  and  then  the  lease  to 
/I.  is  determined,  either  by  an  express  surrender,  or  by  an  implied 
surrender  in  law,  as  I)y  .^'s  acceptance  of  a  new  lease  for  life  from  the 
lessor,  tlie  lease  to  B.  shall  begin  presently  ;  but  if  the  lease  to  B.  had 
been  to  begin  after  the  end  and  expiration  of  tlic  aforesaid  of  twenty- 
one  years,  there  tlie  lease  to  /)'.  should  not  begin  upon  tlic  surrender,  for- 
feiture, or  other  determination  of  the  first  term  to  A.  till  the  twenty- 
one  years  actually  run  out  by  effluxion  of  time:  the  reason  of  which 
difference  is,  that  in  the  first  case  the  word  "  term"  comprehends  as 
well  the  estate  or  interest  in  the  land,  as  the  time  for  which  it  is  de- 
misid,  and  therefore,  the  second  lease  beinij  limited  to  begin  from  the 
end  and  expiration  of  the  afincsaid  term  of  twenty-one  years,  when- 
ever the  term  is  determined,  the  lease  to  B.  shall  begin;  but  in  the 
other  case  the  lease  to  B.  is  not  to  begin  till  after  the  end  and  expira- 
tion of  the  twenty-one  years,  which  cannot  be  ended  but  by  effluxion 
of  lime  {-')' 

So,  it  was  held  that  a  proviso  in  a  lease  for  years  to  ./.  to  re-enter 
if  lessee  died  within  the  term,  is  a  mere  condition,  and  not  a  limi- 
tation ;  and  a  second  lease  habendum  eum  post  mortem  sivc  per  mortem 
sursum  redditioncm  scu  forisfacturam  prudicti  A.  vacari  aceiderit.,  is 
good,  and  commences  when  the  first  term  is  determined  by  effluxion  of 
time  [(). 

So,  if  one  makes  a  lease  to  another  for  so  many  years  as  /.  S.  shall 
name,  this  at  the  begiiniing  is  uncertain  ;  but  when  J.  S.  ludh  named 
the  years,  (in  the  life-time  of  the  lessor),  tliis  ascertains  the  com- 
niencement  or  continuance  of  the  lea-se  accordingly.  Hut  if  the  lease 
had  been  made  for  so  many  years  as  the  executors  of  the  lessor  should 
name,  this  could  tiut  be  made  good  by  an\  nomination ;  because  to 

(o;  Shep.  Toiicli.  273.  *>    I'M    '■'\  (•-)  Ibid. 

(d)  Bac   Abr    tiJ.  "LcauM"  CI    1  ^  fM  m  .'ip   7!. 


122  Of  Terms  for   Years  iibsolntcly,        [Chap.  VI. 

every  lease  there  ought  to  he  a  lessor  and  lessee  ;  and  here  the  noniinalion 
vliich  ascertains  the  commencement  not  l)eing  appointed  till  after  the 
death  of  the  lessor,  makes  the  lease  defective  in  one  of  the  main  parts  of 
it,  viz.  a  lessor,  and  therefore  of  consequence  must  be  void  ;  which  is 
also  the  reason  that  in  the  first  case  the  nomination  ought  to  be  made  in 
the  life-time  of  the  lessor,  and  not  by  J.  S.  after  his  death,  for  then  it 
will  be  void  (rz). 

A  lease  in  reversion  of  several  parcels  of  land,  made  to  commence  on 
the  happening  of  several  contingencies,  shall  take  ellect  and  commence 
respectively  as  these  conthigencies  happened  {^b). 

In  a  case  where  B.  had  a  lease  for  twenty-one  years  of  copyhold 
lands  to  commence  after  the  determination  of  the  estate  which  A.  at 
that  time  had  therein,  and  the  widow  of  A.  being  entitled  to  her  free- 
bench,  happened  to  outlive  her  husband  twenty-one  years,  it  was  held 
by  the  Lord  Chancellor,  that  the  estate  of  the  wife  was  only  an  ex- 
crescence of  her  husband's  estate,  which  did  not  determine  till  the  wife's 
death,  at  which  time  the  lease  made  to  B.  should  commence  and  contin- 
ue for  twenty-one  years  (r). 

A  lease  for  years,  reserving  rent  "  after  the  rate"  of  18/.  a  year,  is 
void  for  uncertainty  (<:/). 

As  to  leases  void  for  uncertainty  in  respect  to  the  time  of  their  coni- 
mrncement,  if  A.  be  seised  of  land  in  fee,  and  lease  it  to  B.  for  ten  years, 
and  it  is  agreed  between  them  that  B.  shall  pay  to  //.  100/.  at  the  end 
of  the  said  ten  years,  and  that  if  he  do  so  and  shall  pay  tlie  said  100/. 
and  100/.  at  the  end  of  every  ten  years,  that  then  the  said  B.  shall 
have  a  perpetual  demise  and  grant  of  the  premises  from  ten  years  to  ten 
years  continually  following  extra  memoriam  hominum,  ^-c. ;  this,  al- 
though it  be  a  good  lease  for  the  first  ten  years,  yet  it  is  void  for  all 
the  rest  for  uncertainty  [e). 

So,  if  the  lessor  grant  the  land  to  Another,  to  have  and  to  hold  to  him 
for  and  during  all  the  residue  of  the  term  of  one  hundred  years  that 
shall  be  to  come  at  the  time  of  the  death  of  the  grantor,  this  is  void  for 
uncertainty  :  had  he  granted  all  his  estate,  or  term,  or  interest,  it  had 
been  otherwise  (/). 

So,  it  is  said,  if  a  lease  be  made  to  A.  for  eighty  years,  if  he  live  so 
Jong,  and  if  he  die  within  the  said  term  or  alien  the  premises,  that  then 
his  estate  shall  cease  ;  and  then  he  doth  further  by  the  same  deed  grant 
and  let  the  premiees  for  so  many  years  as  shall  remain  unexpired  after 
the  death  of  A.  or  alienation,  to  B.  for  the  residue  of  the  said  term  of 
eighty  years,  if  he  shall  live  so  long  :  in  this  case  the  lease  to  B.  is 
void  ;  for  after  tlie  death  of  ./.  the  term  is  at  an  end  ;  but  if  he  say  for 
the  residue  of  the  eighty  years,  it  is  otherwise  {g). 

(a)  Bac.  Abr.  tit.  "  Leases,"  (L.  2.)  (6)  Cro.  Elii.  199. 

fc)  Bac.  Abr.  ut  ante.  {d)  4  Mod.  78.  (e)  Shep.  Touch.  27.1. 

(/)  Ibid.  274.  (g)  Ibid. 


.Sect.  If.]  or  on  ComUlion,  S^'c.  J2.'i 

So,  a  lease  made  lo  another  until  a  cliiUl  in  its  niolhcr's  Ijclly  shall 
come  to  the  a^;c  of  t\v(nty-«»ne  years,  is  not  ^ood  {a). 

So,  if  ./.  m  ike  a  lease  to  IL  for  so  many  years  as  J.  and  B.  or  either 
of  them  shall  live,  not  namin;^  any  certain  number  of  years,  tliiscann  jt 
be  a  i;oo(l  lease  for  years  (li). 

So,  if  the  parson  oi  Dale  make  a  lease  of  his  glebe  for  so  many  years 
IS  he  shall  be  parson  there  ;  this  is  not  certain,  neither  can  it  be  made 
ho  l)y  any  means ;  and  yet  if  a  parson  shall  make  a  lease  from  three 
years  to  tliree  years  so  long  as  hcsliall  be  parson,  this  is  a  good  lease 
lor  Fix  years,  if  he  continue  parson  so  long,  and  for  tiie  residue  void 
fur  uncertainty.      I"u!c  post  [12  (c). 

So,  if  I  mal>e  another  a  lease  of  latul,  uiilil  he  bi-  prnuioted  to  a 
benclice  ;  this  is  no  good  lexse  for  years,  but  void  lor  miceitiinty  (J). 

So,  ifl  have  a  piece  of  land  of  the  value  of  20/. /'./•  fj^i /;///;/,  and  I 
make  a  lease  of  it  to  another,  until  he  shall  levy  out  of  the  profits  thereof 
JOO/.  this  is  no  good  lease  for  years,  but  void  for  uncertainty. — Hut  if  I 
have  a  rentchar^^c  of  201.  per  annum,  and  let  it  to  another  until  he  shall 
have  levied  ICKJ/.  this  is  a  good  lease  for  five  years  (r). 

Note. — In  all  these  cases  of  uncertain  leases  made  with  limitations 
.^  aforesaid,  as  until  such  a  thing  beilonc,  or  so  long  as  such  a  thing 
continue,  Src.  if  livery  of  seisin  be  made  ui)on  them,  they  may  Ijc  good 
leases  for  life,  dcterminal)Ic  upon  these  contingencies,  albeit  they  be 
no  good  leases  for  years  (/). 

In  leases  for  years,  or  other  chattel  interests,  livery  of  seisin  is  not 
necessary;  but  instead  thereof  an  actual  entry  is  requisite,  to  vest  the 
estate  in  the  lessee:  for  to  many  purposes  he  is  not  tenant  for  years 
imtil  he  enter  (if). 

IJefore  entry  the  lessee  hatli  but  an  intcrcsse  termini,  an  interest  of  a 
term,  and  no  possession;  and  therefore  a  release,  whicli  enures  by  way 
of  enlarging  an  estate,  cannot  work  without  a  possession,  for  before  pos- 
session tliere  is  no  reversion.  Such  is  the  case  of  leases  at  common 
law ;  for  if  it  be  so  framed  as  to  be  a  bargain  and  sale  under  the  sta- 
tute, the  possession  is  immediately  executed  in  tlie  lessee,  so  that  no 
entry  is  necessary  (A). 

Yet  if  a  tenant  for  twenty  years  in  possession  make  a  lease  to  IL  for 
five  years,  and  li.  enter,  a  release  to  the  first  lessee  is  good,  for  he  had 
in  actual  possession,  and  the  possession  of  the  lessee  is  his  possession.' 
So  it  is  if  a  man  make  a  lease  for  years,  the  remainder  for  years,  and 
the  first  lessee  doth  enter,  a  release  to  him  in  the  remainder  for  years 
is  <j;oo(l  to  enlarge  his  estate.  A  release  therefore  that  (nnrcs  by  en- 
largement cannot  work  without  a  possession  ;  but  an  ac  tual  estate  in  pos- 
x's-ion  is  not  necessary,  for  a  vested  interest  sulhcei  for  sm  i>  a  release 

(n)  Shep.  Touch  'Z'i.  (h)  Ihid.  27i.  icj  Ibi.l 

(d)  Ibid  (t)  ILiU.  (,'»  Ibid. 

'p   ;  I'.!.  f.Q""  s'l     ibiJ'u     r».  Lit  .48  b  •.   loidVTuiftr 


124  Of  Terms  for   Years  absolutely,        [Cliap.  Yl. 

to  operate  upon. — But  lessee  may  release  the  rent  reserved  before  en- 
try, in  respect  of  the  privity  (a). 

Neither  could  the  lessor  grant  away  the  reversion  by  the  name  of 
the  reversion  before  entry,  unless  the  lessee  attorned,  m  hich  is  now  un- 
necessary (i^). 

If  a  man  make  a  lease  for  a  thousand  years,  this  lease  is  perfect  by 
the  delivery  of  the  deed  without  any  livery  of  seisin  (r). 

The  interest  intcresse  termini,  which  the  lessee  hath  before  entry,  is 
grantal)le  to  another ;  and  although  the  lessor  die  before  the  lessee 
enter,  yet  the  lessee  may  enter  into  the  lands:  so,  if  the  lessee  die  be- 
fore he  enter,  yet  his  executors  or  administrators  may  enter,  because  he 
presently  by  the  lease  hath  an  interest  in  him  ;  and  if  it  be  made  to 
two,  and  one  die  before  entry,  his  interest  shall  survive  (d). 

This  intercsse  termini  is  in  the  lessee,  whether  the  lease  be  made  to 
commence  immediately,  or  at  a  future  day  (e). 

This  entry  by  the  tenant  himself  serves  the  purpose  of  notoriety,  as 
veil  as  livery  of  seisin  from  the  grantor  could  have  done;  which  it 
would  have  been  improper  to  have  given  in  this  case,  because  that  so- 
lemnity is  appropriated  to  the  conveyance  of  a  freehold  (/). 

When  the  lessee  therefore  has  actually  so  entered,  and  thereby  ac- 
cepted the  grant,  the  estate  is  then  and  not  before  vested  in  him,  and 
he  is  possessed,  not  properly  of  the  land,  but  of  the  term  of  years ;  the 
possession  or  seisin  of  the  land  remaining  still  in  him  who  hath  the 
freehold  [g). 

DuTatirj7i  of  a  Lease  for  Years — As  to  the  certainty  of  leases  for  year? 
in  respect  of  their  continuance  or  duration,  this  ought  to  be  ascertained 
either  by  the  express  limitation  of  tlie  parties  at  the  time  of  the  lease 
made,  or  by  a  reference  to  some  collateral  act,  which  may  with  equal 
certainty  measure  the  continuance  thereof,  otherwise  it  will  be  void  (A). 

If  a  man  makes  a  lease  for  years,  without  saying  how  many,  this 
shall  be  a  good  lease  for  two  years  certrin  ;  because  for  more  there  is 
no  certainly,  and  for  less  there  can  be  no  sense  in  the  m  ords  (/). 

If  a  man  leases  lands  for  such  a  term  as  both  parties  shall  please, 
this  is  but  a  lease  at  will ;  because  what  that  term  will  be  is  utterly  un- 
certain, and  the  pleasure  of  the  parties  seems  to  be  limited  to  attend 
the  continuance  as  \\'ell  as  the  commencement  and  first  fixation  there- 
of  (A:). 

So,  if  a  parson  makes  a  lease  for  a  year,  and  so  from  year  to  year  as 
lontr  as  he  shall  continue  parson,  or  as  long  as  he  shall  live ;  this  is  a 
lea:  e  for  two  years  at  least,  if  he  lives  and  continues  parson  so  long ; 
and  after  the  \\\o  years,  or  at  most  after  three  years,  but  an  estate  at 
VI  ill  lor  the  uncertainty,  unless  livery  be  made  (/). 

(a)  Co.  I.it.  2T0.  k  n.  2.  (6)  Ibid.  46.  b.  3.  Jon.  8.  (c)  Sliep.  Touch.  2U. 

(d)  Co.  I,it.  40.  b.  (t)  Com.  Dig.  tit.  "  E.siate?,"  (G.  U.)  (/)  :;  Bl. Com. 314. 

(g)  Ibid.  M4.  (hj  lUc.  Abr.  tit.  "  Leaseo,"  (L.'i.)  (i)  Ibid 

(i)  ll.jU.  (0  Ibid. 


^t'Ci.  n.]  '>'*  '>"  Comlilion,  A'r.  J2;> 

A  p.irson  madoa  Iciisc  of  his  rectory  to  .)nc  for  three  years,  aud  at 
the  end  of  Uiosc  llircc  years,  forofhrr  tline  years,  and  «o  from  three 
years  to  Ihrcf  years,  durji^Mlic  life  of  tlie  k-ssor;  the  >\hoh:  Court  held 
it  clearly  a  lease  for  twelve  years ;  hut  l)y  Do^Wrr/r/r^r,  if  the  lease  had 
boon  for  three  years,  and  so  from  lljrec  years  to  three  years,  and  so 
from  the  said  three  ycnrb  to  thice  years,  this  had  hern  l)ut  a  lease  for 
nine  years  ;  hecaujc  the  Avords  "  from  l/ir  said  three  years"  tic  up  the 
relation  retrospectively  to  the  three  years  last  mentioned,  wliich  make  in 
all  hut  six  years,  and  then  there  are  liut  three  years  mon:  added,  which 
make  the  whole  h'lt  nine  years;  and  forthc  words  "  duriii|^  the  lifeof 
the  lessor,"  they  cannot  enlarge  it  to  any  fnrther  certain  niimher  of 
years,  liy  reason  of  the  uncertainty  of  the  lessor's  life,  and  therefore 
heynnd  the  twelve  years,  or  nine  years,  it  amounts  only  to  a  le;ise  at 
A\il.,  unless  livery  were  made,  which  nnist  necessarily  j)ass  a  freehohl 
determinable  upon  the  lessor's  death  (a). 

Vet  in  one  book,  where  a  lease  was  made  for  tlirec  years,  and  after 
the  end  of  those  three  years,  for  other  three  years,  and  so  from 
three  years  to  three  years,  during  the  life  of  lliu  les  or,  this  w.is  h  Id 
to  be  only  a  lease  for  nine  j'cars ;  because  the  words  "  and  so  from  three 
years"  shall  be  referretl  to  the  three  years  last  menlionsd,  for  otherwise 
these  words  would  exclude  the  three  years  next  after  the  six  years,  and 
make  the  three  last  years  to  begin  after  nine  years,  and  so  make  a  chasm 
in  the  lease  by  shutiin;;  out  the  three  years  next  after  the  six  years,  so 
as  for  the  three  last  years  it  should  be  only  a  future  interest:  which 
case  seems  to  be  of  a  new  stamp,  and  to  tliuart  tiie  preceding  case  as  to 
the  resolution  of  it  being  a  le.isc  for  twelve  years ;  and  there  Jones  and 
Jl'i/d  held,  that  a  lease  from  three  years  to  three  years,  was  but  a  lease 
for  tlirec  years  to  commence  infuturo  (0). 

One  made  a  lease  for  three  years,  and  so  from  three  years  to  three 
years  until  ten  years  be  expired  ;  this  was  resolved  to  be  a  lease  l)ut  for 
nine  years,  and  that  the  odd  year  should  be  rejected,  because  that  can- 
not eonie  to  fall  within  any  three  entire  years  according  to  the  limita- 
tion, which  in  tliis  case  are  to  be  taken  altogether  as  one  year,  or  else  so 
much  of  the  limitation  as  cannot  conic  within  that  description  must  be 
rejected;  and  tljjs  seems  to  aj^rec  witli  Drook-  [tit.  Leases,]  and  Pfondrn, 
[lirports,  27J,  o"i2.  a.]  who  in  general  hold  a  limitativon  in  that  manner, 
from  year  to  year,  for  forty,  fifty,  or  one  luindred  years,  to  be  a  '2,^^o^\. 
lease  for  the  whole  term,  because  there  is  no  sucli  break  of  an  oild 
year  at  the  latter  end  of  the  lease,  as  there  is  in  the  other  case  {(). 

A  parol  demise  to  hold   from  year  to  year,  and  so  on  as  lon^j  as  it 
shall  please  both  parties,  is  a  h'asc  for  two  years,   and  after  every  sub- 
sequent year  begun,  is  not  determinable  till  that  j'or  be  ended  (J). 
If  therefore  ./.  demise  lands  to  B.  for  a  year,  and  so  from  y;'ur  lo 

(<ij  Rir   Al.r    tit    '•  I..  S'.Cf,"  fl.  3  ]  I'.J  lOi-l  :l  KVh  -r.ii   -ft, 

Icj  Rac   Ahr.  W  anttj  t  vid*  2  Show.  31. 

(dj  2  Salt-    lU   Salt;,  •'ir^  :•.  \  Vil..l<!2   4  Etifi  R  •>?. 

18 


J2G  Of  Terms  for   Years  ahsolutdj/,  [Chap.  VI. 

year;  Ihis  is  not.  a  lease  for  two  years  and  afterwards  will,  hut  it  is  a 
lease  for  every  particular  year,  and  after  ihe  year  isljegun,  the  defend- 
ant cannot  drterniine  tlie  lease  before  the  year  is  ended.  But  in  a  lease 
at  will,  the  le?see  may  determine  his  will  after  the  payment  of  his  rent 
at  the  end  of  a  quarter,  but  not  in  the  beginning-,  lest  his  lessor  should 
lose  his  rent.  In  that  case,  therefore,  the  question  seems  to  have  been, 
Avhether  after  the  third  year  commenced,  the  lessor  was  entitled  to  the 
^vhole  year's  rent,  and  Hall  Iield  that  he  was,  because  the  tenant  could 
not  determine  the  estate  in  the  nsicldle  of  the  year  ;  and  the  expression 
"  for  every  particular  year  does  not  mean  that  such  a  lease  operates  as  a 
distinct  demise  for  each  year  separate!}^,  but  that  when  any  year  has 
commenced,  it  is  good  for  the  whole  of  that  year  («). 

So,  where  yl.  agreed  ])y  parol  to  sell  an  estate  to  B.  on  certain  terms 
provided  B.  would  continue  C.  his  tenant,  "  not  for  one  year  only,  but 
from  year  to  year"  (C  having  just  before  been  let  into  possession  under 
a  contract  for  the  purchase  of  the  estate,  which  he  had  failed  to  pay  for 
in  time,  and  had  therefore  forfeited  his  deposit;)  and  J.  thereupon 
agreed  to  talx  C^s  forfeited  deposit  as  part  of  the  purchase-money  :  A. 
and  B.  afterwards  reducecl  their  agreement  respecting  the  purchase  in- 
to writing,  in  which  no  notice  was  taken  of  the  stipulation  concerning 
C"s  tenancy,  yet  it  Mas  held  that  this  stipulation,  being  collateral  to  the 
Avritten  agreement,  was  binding  upon  B.  and  that  the  agreement 
operated  as  a  tenancy  for  two  years  certain  at  least,  though  a  rent  a\  as 
not  then  mentioned,  but  was  to  be  settled  afterwards;  and  that  the 
tenancy  could  not  be  put  an  end  to  at  the  expiration  of  the  first  year 
by  six  months' notice  to  quit  (/>). 

This  point  is  well  illustrated  by  the  subsequent  case,  which  was  sent 
by  the  Lord  Chancellor  to  the  Court  of  C.  P.  for  the  opinion  of  that 
Court  {(■). 

The  defendant,  John  Spurrier,  on  the  14th  Oct.  ITOl,  entered  into 
the  following  agreement  \\  itli  one  William  Atkinson. 

«  London,  Uth  October,  1791. 
"  ^Memorandum.  I,  William  Atkinson  of  Saint  Olaves,  Soitflvvark, 
have  this  day  agreed  to  take  on  lease  of  John  Spurrier  the  dwelling- 
house  and  premises  now  occupied  by  him  in  Old  Broad  Street,  together 
Avith  a  bed. room  now  in  the  possession  of  Mr.  Jmon/,  and  which  bed 
room  is  over  the  one  now  used  by  the  sdid  John  Spurrier  himseK,  to 
hold  for  seven,  fourteen,  or  twenty-one  years,  at  the  yearly  rent  of  one 
hundred  and  fifty  pounds,  payable  half-yearly,  including  all  taxes  which 
are  to  be  paid  by  the  said  John  Spurrier,  the  teriuandrent  to  commence 
from  Christmas  next,  the  usual  fixtures,  carpets  and  floor-cloths  fitted 
to  the  floors,  to  be  taken  and  paid  for  at  a  fair  valuation:  by  the  said 
irilliam  Atkinson.  An  outside  door  to  be  put  to  the  kitchen  entrance  of 
the  house  at  the  expense  of  the  said  John  Spurrier."     And  on  the  back 

■      (a)  1  T.  R.  380.  Salk.  411.  b.  (£->  4  East'sB.  31.  (c)  3  Bos.  and  Pul.  399. 


^rct.  II. j  or  on    I  \>:i(!ihuii,   i\  ( .  \2', 

of  the  saitl  apjiTcniciit  \\.i5  the  follow  iii^  mcnioraiKliim  :  "  f  aqrec  to  Kt 
the  preniises  iiuntioiitd  on  the  other  i^idc  licrcof  upon  Iho  trnns  aiifl 
conditions  expressed  tiicrein  :  Jo/in  Spurrur**  Tlic  said  //'.  Alkhistii 
accord iiiqly  took  ^)OS^<•,s.«:io^  of  the  preniisrs  and  aflcrwarils  disposed  lii 
interest  thiTcin  to  the  plaintill"  Hiiliard  IJiam,  who  tool:  posscssioM 
thereot  and  p;iid  the  rent. —  The  defentlant  on  the  2(ith  of  Jf//ir,  17'J8, 
duly  gave  notice  to  the  plaintilf  to  ipiit  the  premises  at  Christmas  then 
next,  uliicli  the  plaintiiF  refused  to  dt),  a!Iedi;ing  that  tlie  deftndiint 
had  no  rij;ht  to  defcMnine  the  ;igreem;nt  at  the  expiration  of  tlie  first 
seven  years,  but  that  the  tenant  only  had  that  ri^ht ;  in  conseciuence  of 
Avhich,  the  defentlant,  in  lliiurij  Tcniiy  1709,  duly  commenced  an  action 
of  ejectment  itj  A'.  li.  in  order  to  oldain  possession;  upon  whicli  the 
plaintiiland  //'.  .Itkiuson  in  tlie  same  term  fdcil  a  l)ili  against  tlie  de- 
fendant for  a  specific  performance  of  the  said  agreement,  and  tjiat  tin' 
defendant  mii;ht  he  compelled  to  execute  a  lease  of  the  premises  to 
them,  or  one  of  them,  for  twenty-one  years. 

The  qneslion  for  the  opinion  of  the  court  was,  MJictlicr  upon  the 
legal  construction  of  the  said  aiiTcement,  the  defendant  had  a  right  to 
determine  the  term  of  twenty-one  years,  thereby  agreed  to  be  qrantcJ 
at  the  end  of  the  first  seven  years? — The  opinion  of  the  Court  wa-j 
delivered  hv 

Lord  Alvitiilci/,  I".  J.     'I'his  c[ue>lioii  tuiiis  upon  Ihe  le^al  conslruc- 
tion  of  t'le  aL;rcement  stated  in  the  case.     It  is  to  he  observed,  that  the 
agreement  is  not  an  oiler  on  the  part  of  tlu;  lessee  to  take  a  lease  for 
seven,  or  a  lease  lor  fourteen,  or  a  lease  for  twenty-one  years,  but  it  is 
an  oiler  to  take  a  lease  with  an  habendum,  as  stated  by  the  le:-scc  in  hi*^ 
proposals,  viz.  to  ho'd  for  seven,  fourteen,  or  twenty-one  years.     Tlie 
lessor  havinu;  assented  to  let  the  premises  upon  the  terms  and  conditions 
proposed,  it  must  now  he  taken  as  if  a  lease  had  been  actually  i;rantc(i 
containing  such  an  habendum  as  that  stated  in  tiic  proposals.     It  is  for 
us,  therefore,  to  determine  what  is  the  legal  construction  of  surh  an 
habcndvm  in  a  lease.     It  has  been  contended  tliat  where  the  t(  rms  arc 
not  defined,  either  positively  or  by  any  circumstance,  but  an  alternative 
is  stated  which  cannot  be  made  certain  without  the  option  of  one  ol 
the  parties,  the  lease  Is  determinable  at  the  option  of  either.     There 
seems  to  be  great  authority  for  such  a  proposition,  for  undoubteilly 
Lonl  Krni/on  and  Mr.  J.  liullcr  both  intimate  in  the  case  of  (roodriijht 
V.  Hirhnrdson  and  Hall,  [3  T.  R.  102.]   that  the  option  would  ht   in 
cither  party.     But  it  must  not  he  forgotten  (for  I  wish  it  to  be  under- 
stood that,  had  the  judgment  of  the  Court  in  that  case  proceeded  upon 
the  point  alluded  to,  it  would  probably  have  guided  our  judgment  in 
the  construction  of  such  doubtfid  wonls  as  those  which  occur  in  this 
case)  that  Lord  A',  and  Mr.  J.  B.  only  threw  out  their  opinion  obitar ; 
liad  it  been  otherwise,  there  arc  no  authorities,  particularly  that  of 
Lord  Kcni/on,  upon  a  point  arising  out  of  real  property,  to  whicli  I 


128  Of  Terms  for  Years  ahsoliddy,        [Chap.  VL 

should  be  more  disposed  to  defer.  Tlie  lease  hi  that  case  uas  for  three, 
six,  orninc  years,  determinable  in  Ihc  year  1788,  1791, and  1791,  and 
the  construction  put  nponthat  lease  was  that  it  gave  an  option  to  either 
parly,  but  tluit  such  o})tion  must  l)e  exercised  with  reasondldc  notice 
previous  to  tlic  expiration  of  any  of  the  ternis ;  and  as  reasonable  notice 
had  not  been  given,  the  Court  held  that  the  lease  w  as  not  determined. 
With  respect  to  the  case  of  Ferguson  v.  Contish  there  referred  to  [2  Bur. 
1031]  it  is  surprising-  that  any  doubt  should  have  arisen  ;  and  indeed  it 
does  not  appear  that  any  doubt  \i  as  entertained  by  the  Court.  A  lease 
having  been  granted  for  seven,  fourteen,  or  twenty-one  years,  ayd  an 
action  of  covenant  having  been  brought  against  the  lessee  during  the 
first  seven  years,  it  was  contended  by  the  lessee  that  it  was  no  lease  at 
all,  according  to  the  old  doctrine ;  that  a  lease  uncertain  in  its  com- 
mencement or  duration  was  void.  Lord  Mnnsficid  held  that,  at  all 
events,  it  was  a  good  lease  for  seven  years.  These  two  cases  decide 
nothing  with  respect  to  the  point  now  before  the  Court.  It  remains, 
therefore,  for  us  to  consider,  notwithstanding  the  o})inions  thrown  out 
in  these  two  cases,  Whether,  according  to  the  construction  which 
deeds  between  lessor  and  lessee  have  received,  the  power  of  determining 
the  lease  in  this  case  must  not  be  confined  to  the  lessee  ?  Much  is  to  be 
found  in  the  books  relative  to  the  construction  of  deeds  which  contain 
covenants  in  the  alternative  ;  from  all  which  the  rule  appears  to  be  per- 
fectly clear,  that  if  a  doubt  arise  as  to  the  construction  of  a  lease  be- 
tween lessor  and  lessee,  the  lease  must  be  construed  most  beneficially 
for  the  latter.  It  is  laid  down  in  the  books  that  if  a  man  covenant  to 
do  one  of  two  things,  and  he  does  either,  the  covenant  is  not  broken. 
Thus  in  1  Roll.  Abr.  tit.  ComUtion  Xl.pl.  3.fo.  446.  it  is  said  that  if 
a  condition  !)e  that  the  obligor  shall  enfeolfa  man  of  lands  in  D.  or  S. 
upon  request,  the  obligor  has  his  election  of  which  of  the  twelve  shall 
enfeolTliim:  So,  in  pi.  4.  it  is  laid  down,  that  if  the  condition  be  that 
the  obligor  shall  pay  20/.  or  a  pint  of  Avine  upon  request,  he  has  his 
election.  This  election,  however,  is  said  to  depend  upon  which  of  the 
two  parties  to  the  contract  is  to  do  the  first  act.  Therefore,  if  a  man 
make  a  grant  in  the  alternative,  and  the  grantee  enter  into  possession, 
the  grantor  is  no  longer  at  liberty  to  exercise  an  option.  So,  U'  J.  says 
to  B.  I  grant  you  a  horse  out  of  my  stable,  he  puts  it  in  the  power  of 
B.  to  take  which  horse  he  shall  think  proper.  In  the  bishop  of  Bath's 
case,  6  Co.  35  0.  it  was  resolved,  that  the  construction  of  law  as  to  the 
commencement  of  leases  should  be  taken  strongest  against  the  lessor 
and  most  beneficially  for  the  lessee.  Another  strong  authority  to  this 
effect  is  Sir  Roland  Ilei/wood^s  case,  2  Co.  35  a.  where  one  having  de- 
mised, granted,  bargained,  and  sold  certain  lands,  and  the  question 
being,  Whether  the  grantee  should  ta/.e  by  demise  or  by  bargain  and 
sale;  it  was  held  that  the  grantee  had  his  election.  In  Dyer  261.  b. 
the  court  of  C.  P.  held,  that  where  a  lease  of  premises,  which  had 


Sect.  11. J  or  on  CoinUlion,  S'c.  129 

been  irraiitc'd  for  Ihlii  yone  years,  \vas  i;rantt<l  to  a  nr'v  lessee  n  dii  (oitm 
frrtioiiis  Jirasrnfium  ttrmi/io  prailirto  Ji/iito  u.S'jiir  ad  fine  in  tmnini  .i\  nn- 
noriim  lum  invnrdiate  scquciUiuw,  lli.it  llic  ttrius  shotjid  coiiiim-iKe  in 
po.ssts.sJDn  iVom  tilt  entl  «»f  tiic  luniii  r  1(  rni,  and  not  IVoni  the  niakiiiL;  of 
the  deetl,  anil  the  reason  uliicli  tluy  gi\e  for  llic  opinion  is,  liiat every 
grant  shall  be  expounded  most  favourably  for  the  grantee,  and  if  tiic 
lease  were  to  commence  from  the  ntakini;  of  the  deeil  the  lessee  uould 
have  only  four  years.      It  is  tru(;  that  Jironn  doubted  upon  this  point 
ind  that  the  court  of  K.  li.  came  to  a  tliilerent  decisi«)n.    Hut  altiioiigh 
the  court  of  K.  U.  mi^ht  not  think  proper  to  go  so  far  in  favour  of  the 
lessee  as  the  ronrt  of  C.   I\  did,  yet  it  does  no!  follow  that  they  were 
disjKjsed  to  deny  the  rule  of  eou'-truini;  leasts  favourably  for  the  lessee, 
for  where  two  periods  are  mentioned  in  a  deed,  from  which  the  com- 
mencement of  lease  is  to  take  place,  the  legal  construction  is  that  it 
'hall  coninjenec  from  which  of  the  two  periods  shall  first  happen,  and 
0  it  was  determined  in  Dt/cr  312.  b.  in  mnrg.     This  principle  of  ex- 
position is  sound  ;    but  it  is  not  ajjplicable  to  this  case,  which  docs  not 
dcpeiul  upon  the  prittrity  ofdifTereui  p(;riods,  but  upon  the  question, 
In  whom  tiic  option  of  deciding  upon  the  alternative  is  vested  ?     The 
lease  agreed  for  in  the  present  case  was  for  seven,  foiutecn,  or  twenty- 
one  year?.     An  option,  therefore,  was  certainly  intended.     If  then  the 
principle  be  ju.-t,  that  a  lease  is  to  be  construed  most  favourably  for  the 
lessee,  uhy  are  we  to  determine  in  this  instance  that  the  option  is  in 
the  lessor?     If  indeed  a  provision  had  been  inserted  that  the  lease 
should  be  tieterminable  at  the  option  of  either  party,  the  lessor  woidd 
have  been  entitled  to  take  ailvantage  of  it :  but  where  no  such  j)rovisi(in 
fa  inserted,  the  true  construction  seems  to  be  that  the  lessee  is  entitled 
at  his  option,  to  take  that  term  which  is  most  beneficial  to  himself. 
Notuithitanding,  therefore,  the  o{)inions  wliich  have  been  rtfcrrcd  to 
of  Lord  Kcmjon^  and  31  r.  J.  BulUr,  we  think  that  where  no  custom  of 
the  country  exists  upon  the  subject,  the  pntici])!c  of  construing  deeds 
between  lessor  and  lessee  requires  us  to  hold,  that  where  a  grant  is 
made  in  an  alternative  whicli  cannot  be  determined  by  intrinsic  circum- 
stances, the  option  is  left  in  the  lessee  :  and  we  shall  certify  according- 
ly.    There  is  a  case  of  Kcblc  v.  J  fall.  Lilt.  .303,  370.  w  hich  bears  very 
strongly  upon  this  subject.     In  that  case,  a  lease  Iiaving  been  granted 
to  J.  ami  li.  for  forty  years  if  they  and  three  otliers,  or  any  of  them, 
siiould  so  long  live,  a  sfcon<l  lease  was  granted  " /uz/vr/jch/m  from  the 
administration  [probably  misprinted  for  annunciation,]  which  should 
be  in  the  year  loCS,  or  from  and  after  the  surrender,  forfeiture,  or 
other  determination  of  the  said  lease  to  J.  and  /A"  and  some  of  the 
persons  for  wliose  life  the  first  lease  wasu;rantt:d  Iiaving  survi\ed  the 
y«ar  1.508,  a  (piestion  arose  when  the  sect)nd  lease  ought  to  rommence. 
The  case  indeed  does  not  appear  by  the  report  to  have  been  finally  de- 
termined, but  the  Court  strongly  inclined  to  think  that  the  lessee  should 


130  Of  Terms  for  Years  absolulely,      [Cliap.  VJ, 

have  his  election,  because  that  construction  ought  to  be  adopted  which 
is  most  favourable  for  lessees  : 

A  lease  "  for  seven,  fourteen,  or  twenty-one  years,  as  the  lessee, 
jihall  think  proper,"  upon  'which  the  lessee  enters  and  continues  in  pos- 
session, is  undoubtedly  a  good  lease  for  seven  years,  whatever  maybe 
its  validity  as  to  the  two  other  eventual  terms  of  fourteen  and  twenty- 
one  years  (a) . 

So,  a  lease  in  1785,  for  three,  six,  or  nine  years,  determinable  in  ITSS, 
irO],  and  1791,  is  a  lease  for  nine  years  determinable  at  the  end  of 
three  or  six  years,  by  either  of  the  parties,  on  giving  reasonable  notice 
to  quit  ((';). 

An  agreement  to  grant  a  lease  for  seven,  fourteen,  or  twenty-one  years, 
without  saying  at  whose  option,  gives  the  option  to  the  lessee  alone  (c). 

One  lets  a  stable  for  a  week  for  8^.  and  so  from  week  to  week  at  85.  a 
week,  as  long  as  both  parties  pleased  ;  this  was  held  at  most  but  a  lease 
for  three  weeks  certain,  and  for  the  residue  at  will ;  so  this  the  lessee 
at  the  end  of  the  three  weeks  was  not  punishable  for  negligently  keep- 
ing his  fire,  that  being  only  an  involuntary  waste,  wherewith  lessee  at 
will  is  not  chargeable  (d). 

Where  a  lease  is  to  two  for  forty  years,  if  they  so  long  live,  I^olle 
[in  his  reports,  3U9,  310.]  seems  to  think  that  this  does  not  determine 
by  the  death  of  one  of  them,  because  it  is  an  interest  in  both,  ^hich 
shall  survive;  but  the  other  books  are  against  it;  because  their  life  is 
but  a  collateral  condition  and  limitation  of  the  estate,  which  therefore 
is  broken  when  one  dies; — this  diilers  therefore  from  a  lease  to  two 
persons  for  their  liv^es,  for  that  gives  an  estate  to  both  for  their  lives, 
and  both  have  an  estate  of  freehold  therein  in  there  own  right ;  which 
consequently  cannot  determine  by  the  death  of  one  of  them,  for  then 
the  other  could  not  be  said  to  have  an  estate  for  his  life,  as  the  lessor  at 
first  gave  it  {c). 

So,  where  one  made  a  lease  for  forty  years,  "  if  his  wife  or  any  of 
their  issue  should  so  long  live  :"  it  was  ad  judged  that  the  lease  was  not 
determined  by  tlse  death  of  one  of  them,  but  should  continue  till  all 
were  dead  by  reason  of  the  disjunctive  or,  which  goes  to  and  governs 
the  whole  limitation  :  but  if  the  words  had  been  "  if  his  wife  a?id  iisue 
should  so  long  live,"  there  clearly,  by  the  death  of  any  of  them  within 
the  forty  years,  the  term  had  been  at  an  end,  l)y  reason  of  the  copu- 
lative and,  which  conjoins  all  together,  and  makes  all  their  lives  jointly 
the  )neasure  of  the  estate  (/). 

A  lease  was  for  twenty-one  years,  if  the  lessee  lived  so  long  and  con- 
tinued in  the  lessor's  service;  the  lessor  dies;  and.  Whether  the  term 
was  determined?  was  the  question.     Three  of  the  Justices  held,  that 

(a)  Sfiur.  10:U.  (b)  3  T.  R.  4(12.  (c)  17  Ves.  J.  3-.3. 

(d)  Bac.  .\l.r.  tit.  "  I.ca  es,"  (L.  3.)  (e)  Ibid.  (L.  4.) 

(/)  Cro.  Eljz.  270.  Co.  Lit.  225.  a. 


^vci.   fF.]  or  on  (  ontlilion,  cSV. 


l:n 


the  lease  coiilimird  ;  for  there  is  ii,>l  any  hir/tts  in  (he  lessee  Ihat  he  did 
not  serve,  but  it  is  the  act  of  (iod  tliat  he  <liil  not  serve  any  iDii-tr  : 
/mt  the  fourth  uas  strongly  against  it  ;  heeaiisc  it  is  a  liniilation  iolhc 
estat/i,  that  it  shall  not  continue  lonijer  than  he  serxes  (a). 

If  a  person,  havin-  an  interest  fur  thn  e  years  only,  make  a  lease  for 
five  years,  it  would  he  good  for  the  tiirec  years :  for  wliere  an  autliorily 
is  given  to  any  one  to  execute  any  act,  and  he  executes  it  contrary  to 
the  effect  of  his  authority,  this  is  utterly  void  ;  hut  if  he  executes  his 
authority  and  u  ithal  goes  heyund  the  limits  of  liis  warrant,  this  is  void 
for  that  part  only  wherein  lie  exceeds  his  authority  ('0- 

If  a  lease  he  made  for  life  or  years  to  yl.  and  aitcruards  the  lessor 
makes  a  lease  for  years  to  IJ.  regularly,  this  concurrent  lease  to  //.  is  a 
1,'ood  lease  at  least  for  so  many  years  of  the  second  lease  as  shall  he  to 
'me  after  the  first  lease  is  determined  accord intj  to  the  agreement :  as 
il  the  first  lease  to  J.  he  for  twenty  years,  and  the  second  lease  to  J!. 
lie  for  tiiirty  years,  and  hoth  begin  at  onetime,  in  this  case  llie  sicond 
lease  is  good  for  the  last  ten  years  (<•). 

If  the  lord  of  a  manor  may  by  the  custom  grant  copyiiold  estates  "to 
tlircc  persons  Itnlundnm  to  them  successively,  as  they  shall  be  named 
atid  not  otherwise,"  a  surrender  to  J.  for  his  own  life,  and  for  the 
I  ves  of /)'.  and  C.  is  warranted  by  the  custom  (</). 

Allhcugli,  as  hatli  been  said,  a  lease  for  years  must  have  a  certain 
beginning,  and  a  certain  end,  yet  tiic  continuance  thereof  may  be  un- 
certain, for  the  same  may  cease  and  revive  again  in  divers  cases.  As 
if  tenant  in  tail  make  a  lease  for  years  reservin::^  2()y.  and  after  take  a 
\\'\ic  and  die  without  i^sue  ;  now  as  to  him  in  the  reversion  the  lea.sc 
is  merely  void  :  but  if  he  endow  the  wife  of  tenant  in  tail  of  the  land 
(as  she  may  be  though  the  estate  tail  be  determined)  now  is  the  lease  as 
to  tenant  in  dower  (who  is  in  of  the  estate  of  her  husband)  revived 
again  as  against  her,  for  us  to  l.-cr  the  estate  tail  continues,  for  she  sliail 
be  attendant  to  the  third  part  of  the  rent -services,  and  yet  they  were 
extinct  by  act  in  law  (r).  So  it  is,  if  tenant  in  tail  make  a  lease  for 
years  as  before,  ami  die  w  ithout  issue,  his  w  ife  cnsicnt  w  itli  a  son,  and 
he  in  the  reversion  enter,  against  w  horn  the  lease  is  void  ;  but  after  the 
son  be  born  the  lease  isijood,  if  it  be  made  according  to  the  statute, 
and  otherwise  is  voidable.  So,  if  tenant  in  fee-simple  take  a  w  ife,  aiul 
then  make  a  lease  for  years,  and  die,  and  the  wife  is  endowed  ;  in  this 
case  she  shall  avoid  the  lease,  but  after  her  decease  the  lease  shall  be  in 
force  ajrain  ( /'). 

So,  a  rent-charge  for  life  is  suspended  by  the  acceptance  of  a  lease  of 
the  land  ;  ami  by  the  surrender  of  such  lease,  revives  again  (^.) 

TcrmiiuUionofa  Lease  for  I'cars.-'WHh  respect  to  the  termination  of 

a)  Cro.  Klii.  fii\  (6)  Hull.  X:  P.  106    Corsp.  Copv  ;.  Touch  27i. 

(d)  6  Mod   7n.  t»;  Cq.  KiC  l«.  Shrp.  Touch.  271 

'X    Cro.  Cur  101. 


132  Of  Terms  for  Years  absolutely,       [Chap.  VJ. 

a  lease,  a  demise  may  be  detemiined  by  either  of  these  circumstances 
occurring  ;  namely,  by  the  period  expiring  during'  which  the  premises 
■were  leased,  which  may  take  place  upon  the  contingency,  if  there  be 
any,  happening ;  by  surrender  to  the  lessor  ;  by  cancellation  of  the 
deed  [de  quo  qucere?]]  by  condition  within  the  deed  or  indorsed 
thereon  ;  or  by  forfeiture  for  the  breach  of  some  contract  express  or 
iaiplied. 

1.  Termination  by  Effiuxioyi  of  Time. — The  common  means  where1)y 
a  lease  deterniines,  is  by  the  period  expiring  for  which  the  lands,  Src. 
were  demised  ;  or  upon  the  contingency  happening  that  was  to  create, 
as  it  were,  such  period  ;  as  where  a  lease  is  made  during  the  minority 
of  /.  S.  when  /.  .S*.  comes  to  his  full  age  the  lease  terminates ;  or  if  he 
die  before,  it  is  ended. 

Where  a  lease  is  expired,  the  tenant  still  continues  liable,  unless  he 
deliver  up  complete  possession  of  the  premises,  or  the  landlord  accept 
of  another  in  his  room  {a). 

The  circumstances  of  the  landlord  signing  a  notice,  by  which  a 
tenant,  whose  lease  is  expired,  orders  his  under  tenant  to  pay  his  rent  to 
him  in  future,  is  not  evidence  of  his  agreement  to  accept  him  as  his 
tenant,  unless  it  be  proved  that  he  knew  the  contents  of  the  notice  (6). 

2.  Termination  by  Mcrg-rr.— Another  means,  whereby  a  lease  for 
years  may  be  defeated,  is  i)y  way  of  merger,  that  is,  when  there  is  an 
union  of  the  freehold  or  fee  and  term  of  years  in  one  person  at  the  same 
time ;  in  which  case  the  greater  estate  merges  or  drow  ns  the  lesser  be- 
cause they  are  inconsistent  and  incompatible  (r) 

Thus,  if  a  lease  for  years  be  made  to  commence  after  the  death  of 
A.  and  the  grantee  of  the  inheritance  afterward  makes  a  lease  for 
years  to  B.  and  then  the  lessee  of  the  future  interest  assigns  to  the 
grantee  of  the  inheritance,  the  future  interest  is  drowned  in  the  in- 
heritance (fO. 

So,  where  a  fee-farm  rent  is  purchased  in,  by  the  person  that  is 
seised  in  fee  of  the  lands  out  of  which  it  issues,  it  is  merged  in  the 
inheritance  (r). 

Lord  Coke  lays  it  dov.-;i  for  a  general  rule,  that  one  cannot  have  a 
term  for  years  in  his  own  right  and  a  freehold  in  auttr  droit,  but  that 
his  own  term  sliall  drown  in  the  freehold  ;  and  puts  these  cases  :  If  a 
man,  lessee  for  years,  intermarries  with  the  feme  lessor,  this  shall 
merge  and  drown  his  own  term  for  years ;  but  if  a  feme  lessee  for  years 
intermarries  with  the  lessor,  her  term  is  not  thereby  drowned  ;  because, 
says  he,  one  may  have  a  term  for  years  in  aufer  droit,  and  a  freehold 
in  his  own  right,  as  the  husl^and  in  this  case  shall  have.  So  if  lessee 
for  years  make  the  lessor  his  executor,  the  term  is  not  thereby  drowned, 
because  the  lessor  hath  the  term  in  auter  droit. — So  also,  if  the  master 

(a)  1  Esp.  R.  S7.  ;6)  l!,id.  (c)  Dae.  Abi.  Ut.    '  Leases  "  (R.) 

(d)  Cfo.  Jac.  019.  ff.J  10  .Mod.  525.  6. 


Srct.   fl.]  or  nu  (oii'lilion,  <S"r.  I.;;i 

of  an  hospital,  l)cit)'4  a  sole  corporation,  l»y  tlie  consrjit  of  lii>  hnthrcu 
makes  a  loa^c  for  years  of  the  possession  of  tlic  hospital,  arul  after- 
wards the  lessee  for  years  is  iiKule  master,  the  term  is  drowned  causa  f/ua 
supra  ;  but  if  it  had  liccn  a  corporation  a:;-^regatc,  the  niakin-^  of  the 
lessee  ma'^ter  had  not  c\tinu:iiislied  the  term,  no  more  than  if  the  lessee 
had  heen  made  one  of  tlie  hrctiucn  :  yet  if  a  lessee  for  years  of  the  glehc 
In-  made  parson,  the  term  is  merged  by  reason  of  tlie  union  of  the  Irrm 
and  IVethold  ill  him  to  his  own  rii^ht  and  use,  Ihoui^h  he  has  them  in 
several  capacities  (a). 

Hut  this  rule  seems  to  admit  of  divers  exceptions  :  for  if  a  hu'^hand 
he  possessed  of  a  term  in  liis  own  right,  and  the  inheritance  descend  to 
his  wife,  the  term  will  not  n;eri;e  by  his  descent  in  aulcr  droit  ;  for  il 
was  by  act  and  operation  «)f  law  (/>).  So  if  a  lease  had  been  made  upon 
trust,  for  the  advancement  of  such  a  woman,  and  the  lessee  liad  after 
intermarried  with  that  woman  and  then  the  inlieritaiicc  had  descended 
to  her  ;  this,  it  was  ai^reed,  would  not  merge  tiic  term,  but  he  mii;hl 
clearly  dispose  thereof  to  tiie  purpose  intended  ;  because  he  had  it  in 
aulcr  droit  and  to  another  use. — So,  it  seems  to  be  agreed,  th;il  ifa  man 
being  possessed  of  a  term  for  years  in  right  of  liis  wife,  purchase  the 
inheritance,  that  by  this  the  term  for  years,  though  in  right  of  his  w  Lfe, 
is  merged  and  extinct,  l)ecause  the  purchase  w  as  the  express  act  of 
the  husband,  and  therefore  amounts  in  law  to  a  disposition  of  the  term, 
hy  reason  of  the  merger  consctjucnt  tliercupon  :  but  a  liare  intermar- 
riage of  the  feme  termor  with  the  reversioner  will  not  work  a  merger  of 
the  term,  because  by  the  intermarriage  the  term  is  cast  upon  the  hus- 
band by  act  of  law,  w  illiout  any  concurrence  or  immediate  act  done  by 
him  to  obtain  the  same  ;  and  therefore,  in  such  case,  tlie  law  w  ill  pre- 
serve the  term  in  the  same  pliglit  as  it  gave  it  to  the  husband,  till  he  by 
some  express  act  destroys  it,  or  gives  it  away  (r). 

W'Jiere  however  the  husband  himself  is  lessee  for  life,  and  inter- 
marries w  ith  tlic  lessor,  this  merges  his  own  term,  because  he  thereby 
draws  to  himself  the  immediate  reversion,  in  nature  of  a  purchase  by 
his  own  voluntary  act,  and  so  undermines  his  own  term  ;  whereas,  in 
the  other  case,  the  term  existing  in  the  feme  till  the  intermarriage,  is 
uot  therel)y  so  drawn  out  of  her  or  annexed  to  the  freehold  as  to  merge 
therein  ;  because  that  attraction  which  is  only  by  act  of  law  conse<]iient 
upon  the  marriage,  would,  by  merging  the  term,  do  w  rong  to  a  feme- 
covert,  and  so  take  the  term  out  of  her,  though  the  husband  did  no  ex- 
press act  to  that  purpose,  which  the  law  w  ill  not  allow.  IJut  in  such 
case,  if  the  feme  should  survive,  and  have  dower  of  these  Js,  this 
fieems  a  merger  of  her  term  for  a  thiixl  part  at  least ;  bec^^  W  she 
hath  the  term  and  freehold  both  inher  own  ri^'Iit,and  thc«l*.l.' -wCj^siou 
of  the  freehold  must  pro  i,iJi!o  merge  and  drow  n  the  term  [d'). 

(n)  Btc.  Abr.  ul  nuii.         '   .  (t)  Cro.  Jao    -7j. 

''•)  B»c.  Abr.  •»  p  •■  '<i-  Ibid 

.10 


134  Of  Terms  for  Years  ahsolutdi/,        [Chap.  VI. 

But  if  a  feme  executrix  takes  ]ius])am],  ant!  tlie  husband  after  pur- 
chases the  reversion,  and  dies,  yet  the  feme  surviving  shall  not  have  the 
term  to  any  otiier  purpose  but  as  assets  to  pay  debts ;  for  as  to  any 
right  of  her  own  therein,  the  term  is  extinct  by  such  purchase  of  the 
husband,  because  that  was  his  own  express  vohnitary  act,  and  there- 
fore amounts  to  a  disposition  of  the  term  by  the  merger  wrought  there- 
upon (c/). 

One  lets  lands  to  J.  for  life,  and  twenty  years  over,  and  after  lets 
the  same  lands  to  B.  for  forty  years,  to  commence  after  the  death  of 
J.  and  the  end  of  the  said  twenty  years  ;  then  B.  intermarries  with  A. 
and  J.  dies,  and  B.  the  husband  hath  the  term  for  t^\•enty  years,  yet 
his  term  of  forty  years  is  not  surrendered  by  it,  because  that  was  hot 
begun  i  but  was  a  future  inter  esse  tennini,  to  begin  wholly  after  the  first 
lease  ended  ;  so  tliere  was  no  union  at  all  of  the  terms  (b) . 

Land  was, given  to  the  husband  and  wife,  and  to  the  heirs  of  the 
husband;  the  husband  makes  a  lease  for  years,  and  dies,  and  the  wife 
enters  and  intermarries  with  the  lessee  :  it  was  holden  that  this  terra 
was  not  extinct,  because  the  entry  of  the  wife  put  a  total  interruption 
to  tiie  interest  of  the  lessee,  and  avoided  the  term  entirely  as  to  herself, 
because  she  was  in  of  the  freehold  by  survivorship  parainount  the  lease, 
and  then  the  lease  cannot  take  place  again  till  after  her  death  against 
the  heirs  of  her  husband,  and  whether  she  will  outlive  the  term  or  not 
is  uncertain ;  so  that  during  her  life,  the  lessee  had  no  .nterest,  but  only 
a  bare  possibility,  which  cannot  be  touched  or  hurt,  by  the  intermar- 
riage, but  continues  just  as  it  was  before  (c). 

As  more  particular  notice  of  cases  touching  this  matter  would  tend 
little,  if  at  all,  to  elucidate  the  subject  of  this  m  ork,  we  shall  merely 
mention,  that  a  court  of  law  cannot  merge  estates  unless  it  hnds  them 
in  the  same  person,  and  acquired  (subject  to  some  exceptions)  in  the 
same  right.  But  courts  of  equity  look  into  the  beneficial  interests  and 
views  of  parties,  and  do  not  regard  whether  the  estates  are  strictly  in 
the  same  person,  or  in  different  persons.  Hence  it  is  a  general  rule 
with  these  courts,  that  where  the  owner  of  an  estate  becomes  entitled 
to  a  charge  upon  it  secured  by  a  term  of  years,  such  term  shall  sink  for 
the  benefit  of  the  heir.  Thus,  though  the  owner  were  a  lunatic,  the 
term  shall  merge ;  for  as  between  his  mere  absolute  real  and  personal  re- 
presentatives, no  equity  can  exist. — But  exceptions  to  this  rule  are  ad- 
mitted in  several  instances. 

3.  T&wff nation  hy  surrender, — A  third  mode  by  which  a  lease  may  be 
Tuade^^^'-ttermine,  is  by  surrender,  Avhich  properly  is  a  yielding  up  of 
an  eaii'"--  •^'-  i'.jfc  or  years  to  him  that  hath  the  immediate  estate  in  re- 
version or  rcJf.^nder,  w  herein  the  estate  for  life  or  years  may  drown  by 
juutual  agreement  {d) :  and  it  diflers  from  a  release  in  this  respect,  that 

(a)  Bac.  Abr.  wt  a?!(f,  (h)  Bac.  Abr.  tit.  "  Leases/'C-'-  3-) 

C'-;   U)id.   (H  )  ('/•>  Co.  Lit.  337. 


Si'cl.  II.]  or  on   Condi  lion,  Ss\\  !;{,> 

flic  release  operates  hy  tlie  greater  estate  Hesceiidini;  wpon  the  k>-  ; 
^Nhtrcas  a  Kiirreiukr  is  the  fallin^of  a  less  estate  into  a  t;rcater  (</). 

A  siirren(|( r  i>  made  hy  th<se  words,  "  liatli  surreiideretl,  granted, 

lid  yielded  up."     The  tiirretulcror  must  lie  in  j)(i.->es>it)n,  and  the  siir- 

ninleri'e  nui.^t  have  a  hii^her  estate,  in  wliieh  l!ie  estate  snncndtred 

in  ly  niery;e  :  llu  lefnre  tenant  lor  life  cannot  snrrender  to  him  in  remain- 

Icr  for  years.     In  a  .'•iirrender  tlierc  is  no  otca-ion  for  livery  of  seisin  ; 

ior  there  is  a  privity  of  estate  l)et\veen  the  surrenderor  and  the  surren- 

■hree,  the  particular  estate  of  the  one  and  the  remainder  of  the  other 

't  ingonc  and  the  same  e.state  ;  livery  therefore  havinii;  been  once  made 

at  the  creation  of  it,  there  is  no  necessity  for  having  it  afterwards  (Ji). 

If  an  estate  lie  siirretidered,  the  whole  estate  is  tletcrmincd  without 
other  ceremony  ;  and  as  to  the  parlies  themselves,  it  will  he  iletermined 
Xo  all  intents  (r). 

IJy  the  statute  of  frauds  and  perjuries  (20  Car.  2.  c.  3.)  it  is  provi- 
ded, that  no  leases,  estates,  or  interests,  either  of  freehold  or  term  of 
)ear?,  shall  he  surrendered,  unless  it  be  by  deed  or  not*  in  writing, 
signed  by  the  party  so  surrendering  or  their  agents  thereunto  lawfully 
authorized  by  writing,  or  by  act  and  operation  of  law.  s.  3. 

It  was  held,  that  a  lease  for  years  cannot  be  surrendered  by  cancel- 
ling the  indenture  without  writing  ;  because  the  intent  of  Jhe  statute 
was  to  take  away  the  manner  they  formerly  had  of  transferring  interests 
in  lands,  by  sij^ns,  symbols,  antl  words  only  ;  ami  therefore,  as  a  livery 
and  seisin  on  a  parol  feoffment  was  a  sign  of  passing  the  freehold,  be- 
fore tlie  statute,  but  is  now  taken  away  by  the  statute,  so  the  cancelling 
a  lease  was  a  sign  of  a  surrender  before  the  statute,  but  is  now  taken 
away,  unless  there  be  a  writing  under  the  hand  of  the  party,  it  has 
also  been  held,  that  the  statute  does  not  make  a  deed  absolutely  neces- 
sary to  a  surrender  ;  for  it  directs  it  to  be  made  either  by  deed  or  note 
in  writing,  \n  hieh  note  in  writing,  though  not  a  deed,  nuist,  it  is  con- 
ceived, be  stampcri,  acdording  to  stat.  23  G.  3.  c.  58.  s.  1.  which  impo- 
ses a  duty  on  "  any  conveyance,  surrender  of  grants  or  cfHces,  release," 
A-c.  and  the  surrender  of  a  lease  is  the  surrender  of  a  grant,  and  is,  as  it 
were,  a  re-demisc  (<.'). 

As  to  what  estate  a  surrender  may  operate  npon,  it  was  once  doidjtcd 
M  hether  years  could  merge  in  years  ;  but  it  seems  to  be  now  settled, 
that  it  a  term  in  reversion  be  greater  than  a  term  in  jwssession,  the 
greater  won  hi  merge  the  lesser,  as  ten  years  may  be  surrendered  and 
in»-rge  in  twelve  or  fourteen  years  (<r). 

liven  though  the  reversion  were  for  a  less  number  of  years,  yet  the 

iirrcndcr  would  be  good,  and  the  first  term  drowned  ;  as  if  one  were 

tlie  Ic^^ee  for  twenty  years,  and  the  reversion  expectant  hercmwn  were 

(a)  Co  Lit.  337.  o.  I  ih,  2  111.  Com.  32tV    Co.  Lit   J37. 

(e)Coni.  Dig.  Ut  Siirreoiler  (J..  I.)   Co.  Ut.  aov.  6.  r'<;n.  1.  toCo.  Lit338.■ 

^'^  llw    K^n.  tit.  "  Irnjvs."  'S.  2.>  Tro.  Klir.  W. 


136  Of  Terms  for  Years  absolutely,        [Chap.  VI. 

granted  to  one  for  a  year,  wlio  granted  it  over  to  the  lessee  for  twenty 
years,  this  m  ould  work  a  surrender  of  the  twenty  years'  term,  as  if  he 
had  taken  a  new  lease  for  a  year  of  his  lessor  ;  for  the  reversionary  in- 
terest coming-  to  the  possession  drowns  it,  and  the  number  of  years  is 
not  material,  for  as  he  may  surrender  to  him  who  hath  the  reversion 
in  fee,  so  he  may  to  him  who  hath  the  reversion  for  any  lesser 
term  (a). 

It  V.  as  held  therefore,  that  '\\  here  lessee  for  twenty  years  makes  a  lease 
for  ten  years,  and  tlie  lessee  for  ten  years  surrenders  to  his  lessor,  viz. 
to  the  lessee  for  twenty  years,  that  this  is  good,  and  the  lessor  shall  have 
so  many  of  the  years  as  were  then  to  come  of  his  former  term  of  twenty 
years,  that  is,  as  it  seems,  so  many  years  as  were  to  come  of  his  rever- 
sion shall  be  now  changed  into  possession  (b). 

A^'hcther  a  lease  for  years  in  possession  may  be  surrendered  so  as  to 
be  merged  in  a  lease  in  remainder,  be  the  term  in  remainder  greater  or 
lesser  than  the  term  in  possession,  seems  to  be  no  where  settled  ;  an 
estate  for  life  however  cannot,  it  is  conceived,  be  surrendered  to  or 
merge  in  reversion  if  it  be  only  for  years,  but  this  is  held  otherwise 
elsewhere  (c). 

Surrenders  in  law,  or  implied  surrenders,  are  excepted  in  the  statute 
of  frauds,  and  remain  as  they  did  at  common  law,  if  the  lease,  which  is 
to  draw  out  such  surrender,  be  in  writing  pursuant  to  that  statute  {d). 

As  to  the  surrender  in  law  of  leases  in  possession,  this  is  wrought  by 
acceptance  of  a  new  lease  from  the  reversioner,  either  to  begin  pre- 
sently, or  at  any  distance  of  time  during  the  continuance  of  the  first 
lease  ;  the  reason  why  such  acceptance  of  a  new  lease  amounts  to  a  sur- 
render, and  determination  of  the  first  is,  because  otherwise  the  lessee 
Avould  not  have  the  full  advantage  that  he  had  contracted  for  by  accep- 
tance of  the  second  lease,  if  the  first  should  stand  in  the  way  and  corr- 
sume  any  of  those  years  comprised  in  the  second  lease  ;  for  which  rea- 
son and  to  enable  the  lessor  to  perfect  and  make  good  his  second  con- 
tract, the  lessee  must  be  supposed  to  waive  and  relinquish  all  benefit 
of  the  first  (<•). 

If  therefore  lessee  for  life,  or  years,  take  anew  lease  of  him  in  rever- 
sion, of  the  same  thing  in  particular  contained  in  the  former  lease  for 
life  or  years,  this  is  a  surrender  in  law  of  the  first  lease.  For  this  pur- 
pose, it  is  not  necessary  that  the  surrenderor  be  in  possession,  for  if  a 
lease  be  to  commence  at  Mich,  next,  and  the  lessee  take  a  new  lease  be- 
fore Mich,  this  is  a  surrender  in  law  of  the  first  lease  (/). 

So,  if  lessee  for  years  accept  a  new  lease  from  the  guardian  in 
socage  (5-). 

fa)  Cro.  Eliz.  302.  2  Ld.  Rayra.  402.  (6)  Ibid.  Popli.  30.  (c)  Bac.  Abr.  ut  ante. 

(d)  Shep.  Touch.  301.  &  Com,  Die:,  tit.  Surrender  (L.  1.)  Perk.  68.  Stat.  29.  C. 2.  c.  3. 

(e)  iJac.  Abr.  tit.  31.  (S.  3.)  Cro.  Eliz.  521.  COS.  (f)  Shep.  Touch.  301> 
(S)  Com.  Dig.  tit.  Surrsnder  (L.  I.) 


Sect.  Il.'J  ('/•  on  Comlitioii,  S'r.  1.17 

So,  if  Ic5?pc  for  twenty  years  takes  a  lease  for  ten  years,  to  Iki^Iii  at 
Michaelmas^  there  is  no  (loal)t  hut  tliat  llu;  term  of  t^  enly  years  is  sur- 
rendered or  tlrlcrJiiiiieii  pieMiitly;  for  hy  the  hssee's  acceplaiice  ho 
allows  the  lessor  ahle  to  let  the  l.uid  liiiriiii;;  the  other  lease,  ami  indeed 
by  sueh  acceptance  the  lessor  halh  power  to  make  a  new  lease  tlurhig 
the  former,  anil  at  the  time  of  tlic  lease  makiiii;  («). 

If  there  he  two  levees  for  life,  or  years,  and  one  of  them  lake  a  new 
lease  for  years,  this  is  a  surrender  of  his  moiety  ;  whcrehy  it  appears 
that  a  surrender  in  law  ni.iy  l>e  made  of  sonic  estates  wliich  cannot  be 
surrendered  by  a  surreutlcr  by  deed  ;  U)r  potior  cstcUaposUio  Icgis'jvnm 
honiiiiis  (/'). 

But  the  reversion  of  the  surrenderee  nmst  be  an  immediate  rcvcr- 
fiion  (f ). 

If  therefore  //.  lets  to  li.  for  ten  years,  wlio  lets  to  C.  for  five  ycar>, 
C.  cannot  surrender  to  ./.  by  reason  of  the  interniediate  interest  of  li. 
I)ut  in  such  a  case  li.  may  surrender  to  A.  and  after  so  many  years  C. 
likewi-e,  because  tlien  his  lease  for  five  years  is  become  immediate  to 
tiie  reversion  of  ./.  («/). 

\\  Ju-re  the  lessee  for  years  of  a  house  accepts  a  grant  of  the  custody 
of  the  same  house,  it  a  surrender,  and  lias  been  so  adjnd'^ed;  for  I  he 
custody  of  the  same  thinj,^  whicli  was  let  before,  is  another  interest  in 
the  same  thin;;  leased,  and  cannot  stand  with  the  first  lease  (c). 

If  the  first  lease  be  of  the  land  itself,  and   the  secontl  lease  is  of  the 
vesture  of  the  sajnc  land,  this  is  held  to  be  asurremler  of  the  first  lease. 
So,  if  the  lessee  accepts  a  grant  of  common,  or  rent  out  of  the  same 
land,  to  connnencc  at  a  certain  day  u  ithin  tlie  term  (  /  ). 

So,  if  the  grantee  of  an  ollicc  accepts  a  new  grant  of  the  sami-  office, 
it  will  be  a  surrender  (i;). 

Lessee  for  years  to  begin  presently  cannot,  till  entry  or  waiver  of  the 
possession  by  the  lessor,  merge  or  ilrown  the  same  by  any  express 
surrender;  because  till  entry  there  is  no  reversion  wherein  the  posses- 
sion may  drown  :  but  if  the  lessee  had  entered,  and  assigned  his  estate 
to  another,  such  assignee  before  entry  might  have  surrcnUered  his  es- 
tate to  tlie  lessor,  because  by  tlic  entry  of  the  lessee  the  possession  was 
scvereil  and  divided  from  the  reversion,  which  [lossession,  being  by  as. 
signment  transferred  to  the  assignee,  may  without  other  entry  be  sur- 
rendere;!,  and  dr.)wn  in  the  reversion  (/i). 

If  there  be  two  joint-tenants,  and  one  of  them  have  the  particular 
estate,  and  the  other  the  fee-simple;  as  where  an  estate  is  limited  to 
two  and  the  heirs  of  one  of  them,  and  he  that  hath  the  estate  for  life 
aliens  his  part  to  a  stranger,  in  this  case  the  alienee  may  surrender  to 

(n)  Cro.  Elif.KS.  (<.)  Sbep.  Tourh.3fla.  (r)  Plo»i' ■^n 

{d)  Ihc.  A»»r.  «ii  C!^   ")  I"  ^r<»  Jxc.  177.  (/)  Com.  Dix  Ut  SBrrcihUT  (I  t  > 

if)  lliiiJ  1^)  B»c    Abr.  lit    "l««»«s"  (i; 


138  Of  Terms  for    Years  ahsoluitly,      [Chap.  VL 

the  other  joint-tenant ; — so,  if  there  be  three  joint-tenants  for  life,  and 
the  fee-simple  is  limited  to  the  heirs  of  one  of  them,  and  one  of  the 
joint-tenants  for  life  releases  to  the  other,  and  he  to  Avhom  this  release 
is  made  surrenders  to  him  that  hath  the  fee-simple,  this  is  a  good  sur- 
renderofa  third  part. — But  otherwise  one  joint-tenant  cannot  surrender 
to  another-joint-tenant  although  he  avIio  makes  the  surrender  be  tenant 
for  life,  and  he  to  Mhom  it  is  made  be  tenant  in  fee-simple  (a). 

One  executor  may  surrender  an  estate  or  lease  for  years,  which  the 
exccuti)rs  have  in  the  right  of  their  testator  (b). 

But  if  one  enter  into  land,  and  make  a  lease  for  the  trial  of  the  title 
only,  and  afterwards  the  lessor  (he  and  the  lessee  being  both  out  of 
possession)  make  another  lease  of  the  same  thing  to  the  lessee,  it  seems 
this  is  no  surrender  of  the  first  lease;  but  if  the  lessor  enter  before  he 
make  the  lease,  contra  (c). 

If  the  husband  have  a  lease  or  estate  for  years  in  the  right  of  his 
wile,  he  alone,  or  he  and  his  wife  together,  may  surrender  it ;  but  if  the 
husband  have  an  estate  for  life  in  the  right  of  his  wife,  being  tenant  in 
dower  or  otherwise,  and  he  alone,  or  he  and  she  together,  surrrender  it> 
this  surrender  is  good  or>,y  daring  the  life  of  the  husband,  except  it 
be  made  by  fine  {d). 

Lessee  for  twenty-one  years  took  a  lease  of  the  same  lands  for  forty 
years,  to  begin  immediately  after  the  death  of  J.  S.  it  was  held,  that 
this  was  not  any  present  surrender  of  the  first  term,  because  J.  S.  might 
wholly  outlive  tiiat  term,  and  then  there  Mould  be  no  union  to  work  a 
surrender  •  and  it  being  hi  equilibrio  in  the  mean  time,  whether  he  will 
survive  it  not,  the  first  term  shall  not  be  hurt  till  that  contingency 
happens,  for  if/.  S.  die  within  the  first  term,  then  ^liat  remains  of  it 
is  surrendered  and  gone  by  the  taking  place  of  the  second  (c). 

Although  the  statute  of  frauds  directs  that  the  deed  or  notice  in  writ- 
ing shall  be  signed  by  the  surrenderor,  yet  where  an  agreement  was 
entered  into  bet^  een  the  lessor  and  lessee,  at  the  instance  of  the  for- 
mer, for  the  siirrendcr  of  a  lease  an  assignment  actually  prej)ared,  the 
key  delivered  up  and  accepted,  and  a  long  acquiescence  on  the  part  of 
the  lessor,  without  any  claim  or  demand  upon  the  lessee ;  it  Was  decreed 
in  equity  that  the  lessee  should  be  discharged  of  the  rent  from  the 
time  he  had  delivered  up  the  key  (/). 

But  {g)  \i  in  a  lease  determinable  on  three  lives,  it  is  covenanted  that 
on  the  death  of  one,  the  lessee  may  if  he  please  surrender,  and  that  the 
lessor  shall  thereupon  and  upon  payment  of  a  fine,  grant  a  new  lease 
for  three  lives  in  the  terms  of  the  old  lease,  and  in  a  new  lease  there  is 
a  covenant  to  surrender  the  same  absolutely,  as  a  life  drops  equity 

(n)  Shep.  Toiioli.- :?03.  (fc)  Ibid.  (c)  Ibid, 

(d)  fclitp  Toucii.  t.«/7«<e.  (e)  Bac.  Ahr.  tit.  "Leases"  (S.  53.) 

(J)  Hac.  oil  1  eatfS.::U.  (g)  9  lUod.  5«. 


Seel,   ll.j  or  on  Condilion,  SCc.  I19 

■\vill  assist  the  lessee  to  retain  possession  as  if  llic  prior  lease  Imd  con- 
timiajicf  (n). 

If  IcsYce  re-demise  his  whole  term  to  liis  lessor,  it  is  a  Piirrendcr  in 
law,  and  as  fully  as-if  it  had  been  actually  siirreiuici^J  :  ami  this  nut- 
withslandin^  a  reservation  of  rent  be  mule  (.'/). 

So,  wlirrr  a  lease  came  bilo  the  haiuls  of  the  oriL;inal  h-sror,  by  an 
ngrccmciit  entered  into  between  him  and  the  assi-rnee  of  the  oriijinal 
Ie??c(',  "that  the  lessor  should  have  the  premises  as  mentioned  in  the 
icasc,  and  should  pay  a  particular  sum  over  and  al)ovc  the  rent 
uumally,  towards  the  goodwill  already  jiaid  by  ruch  assiqutr,"  it 
was  adjuilijed  that  such  aijreement  oi)erated  as  a  surrender  of  the  wliole 
tfrni  (f ). 

Hut  if  a  lessee  reserved  to  himself  any  interest  in  or  part  of  the 
estate,  it  is  no  surrender.  For  if  lessee  for  years  makes  a  lease  to  his 
lessor  for  all  but  a  day,  this  is  clearly  no  surrender  of  his  lease,  because 
the  day  disjoins  the  union,  and  pre\  l  its  the  merger  which  would  have 
followed  if  the  lease  had  been  for  the  whole  term  ;  for  then  the  lessor 
\onld  have  liad  the  whole  estate  entire  in  liim,  as  he  had  before  he 
made  the  lease,  and  consequently  the  lease  would  be  merged  and  drown- 
ed in  the  reveriion  (r/). 

So,  if  he  lease  to  his  lessor  for  the  lessor's  life ;  for  he  has  a  possibility 
to  have  it  a4:;ain  (r). 

An  ai^recment  between  the  lessor  and  a  stranijer  that  the  lessee  shall 
have  a  new  lease,  is  no  surrender  (/). 

If  lessee  accepts  a  new  lease  in  trust  for  another,  it  is  no  surren- 
der {L(). 

So,  if  he  accepts  a  2^rant  of  a  thing  consistent  with  the  lease  of  the 
land,  it  is  no  surrender:  as  if  the  lessee  of  a  manor  accepts  the  grant 
of  a  bailiwickjor  tliestewardsliipof  the  same  manor,  for  it  is  collateral ; 
so  if  he  accepts  the  oflice  of  parkkecper  of  the  same  i)ark  for  his  life, 
that  is  no  surrender,  for  the  same  reason  (//). 

But  where  lessee  for  years  of  an  advowson  was  presented  to  the 
advov.son  by  the  lessor,  it  was  adjudged  to  be  a  surrender  of  his 
term  (/), 

So,  if  a  copyholder  in  fee  take  a  lease  for  years  of  the  same  land,  it 
is  an  extingiiishmf  lit  of  his  copyhold  in  Jwrpduum  :  but  if  he  take  a 
lease  for  years  of  the  iiianor,  that  is  but  a  suspension  cf  his  ropyliohl 
during  the  term  (/.). 

It  is  said,  that  if  a  man  Iwith  lands  in  J.  and  other  lands  in  /A  and  lets 
those  in  --/.  for  twenty-one  years,  and  the  next  day  iels  all  his  lands  in 
li.  for  ten  years,  it  is  not  any  surrender  of  the  lands  in  J.  but  shall  be 

rn)  4  Bro.  H.  <!?.  (fc)  2  Mod.  I7.V  .i     ul. 

(d)  Com.  Dig.  tit.  "  Surr«n<l«r,"  (If.)  (L.S)    B»c.  Abr.  Ik.  "  Leu*!,"  .S.  a.) 

(r)  Com   Di?.  ut  aUc  .        (/)  Cro  EUfc  17J.  {f)  Co«.  Uifc.  ut  aiJt. 

(*)  Cro  Jir    17*.  f ;;  ItiitJ.  81.  ill  Ibid. 


i40  Of  Terms  for   Yeai's  absolniclyy       [Chap.  VL 

construed  as  a  lease  of  all  the  other  lands ;  which  may  well  stand  with 
the  former  lease  {(i). 

So  if  a  lessee  take  a  grant  of  a  rent  charge  out  of  the  same  land  for 
Jife,  or  if  a  lessee  for  life  take  a  grant  of  a  rent-charge  for  years,  that  is 
not  any  surrender,  because  he  might  have  the  benefit  of  that  rent  after 
the  estate  in  the  land  is  determined :  but  if  a  lessee  for  life  take  a  grant 
of  a  rent-charge  for  life  out  of  the  same  land,  that  is  a  surrender,  for 
otherwise  the  rent-charge  cannot  take  any  effect. 

So  it  is  said,  if  the  lessor  grants  a  rent,  common,  »^c.  out  of  the  land 
to  his  lessee,  Avithout  saying  at  what  time  it  shall  commence,  it  is  no' 
surrender ;  but  it  shall  be  intended  after  iiis  term  (/>).  [But  quaere  this  ? 
for  if  the  delivery  of  the  deed  constitute  the  commencement,  as  it  does 
in  all  cases  where  no  date  occurs  or  period  is  fixed,  it  seems  it  would  be 
a  surrender.] 

So,  if  the  king  grant  an  office  by  patent,  or  make  a  demise  for  years, 
the  acceptance  of  a  new  patent  in  the  one  case,  or  of  a  new  lease  in  the 
other,  is  no  surrender  of  the  first  grant  (c). 

A  fine  levied  by  a  tenant  for  life  to  a  reversioner  in  fee,  to  the  use  of 
the  conusee  and  his  heirs,  upon  condition  broken  to.the  use  of  the  conu- 
sor for  life,  and  one  year  over,  is  not  a  surrender  {d). 

No  surrender,  express  or  implied,  in  order  to  or  in  consideration  of 
a  new  lease,  will  bind,  if  the  new  lease  is  absolutely  void;  for  the 
cause,  ground,  and  condition  of  the  surrender,  fails ;  it  is  not  indeed 
reasonable  in  itself,  nor  can  it  ])e  the  intent  of  the  parties,  that  an 
acceptance  of  a  bad  lease,  should  be  an  implied  surrender  of  a  good 
one.  Indeed  a  void  contract  for  a  thing  that  a  man  cannot  enjoy,  can- 
not in  comm.on  sense  and  reason  imply  an  agreement  to  give  up  a  ftrmer 
contract  (£'). 

Tlie  mere  cancelling  In  fact  of  a  lease  is  not  a  surrender  of  the  term 
thereby  granted  within  the  statute  of  Frauds,  which  requires  such 
surrender  to  be  by  deed  or  note  in  wi;iting,or  by  act  or  operation  in  law ; 
nor  is  a  recital  in  a  second  lease  that  it  was  granted  in  part  considera- 
tion of  the  surrender  of  a  prior  lease  of  the^same  premises  a  surrender 
by  deed  or  note  in  writing  of  such  prior  lease.  Where  tenant  for  life 
with  a  special  power  for  leasing,  reserving  the  best  rent  in  consideration 
(as  recited)  of  the  surrender  of  a  prior  term  of  ninety-nine  years  (of 
which  above  fifty  were  unexpired)  and  certain  charges  to  be  incurred  by 
the  tenant  for  repairs  and  improvements,  &c.  granted  to  him  a  new 
lease  of  the  premises  for  ninety-nine  years,  by  virtue  of  the  power 
reserved  to  her  or  any  other  power  vested  in  or  in  any  wise  belonging  to 
her,  which  new  lease  was  void  by  the  power  for  want  of  reserving^  the 
best  rent ;  Held  that  the  second  lease  being  void  under  the  power  should 
not  operate  in  law  as  a  surrender  of  the  prior  term  as  passing  an 

(a)  Cro.  Jar.  lY".  (t)  Com.  Vivi.  ul  ante.  (c)  Cro.  Car.  Vil. 

(d)  Cro.  EJiz.  68i/.  (e)  3  Bur.  Ib07.  4  Bur.  1980.' 


•Scrt.  II.J  or  on   (  oii(/ilion,  <S'r.  It) 

interest  out  of  the  life  estate  of  the  grantor,  contrary  to  tlic  manifist 
intent  of  tlic  parties,  and  cohsccincntly  that  the  prior  term,  thoiieli  the 
indenture  of  lt;u:e  were  in  fact  canrcllcd  and  delivered  up  ^^  lien  the 
new  lease  were  granted,  might  be  set  up  by  the  tenant  of  the  premises 
in  bar  to  an  ejectment  by  the  remainder-man  after  the  death  of  tenant 
for  life  ((f). 

So  if  a  surrender  is  intended  for  a  particular  purpose,  and  that 
purpose  (the  only  motive  of  it)  fails;  the  surrender  ought  to  fail 
too  ib). 

If  therefore  the  new  lease  does  not  pass  an  interest  according  to  tiie 
contract  and  intention  of  the  parties,  an  acceptance  of  it  is  not  an  im- 
plied surrender  of  the  old  lea:  c  (r). 

A  lessee  may  surrender  upon  condition,  atul  if  the  condition  l>e 
broken,  the  particular  estate  shall  be  revested  (r/). 

If  lessee  agrees  to  quit  upon  condition,  and  the  condition  be  not  per- 
formed, it  does  not  amount  to  a  surrender  of  his  interest  :  as  where  a 
person  being  in  possession  of  premises  as  tenant  from  year  to  year, 
under  an  agreement  for  a  lease  of  fourteen  years,  and  the  rent  being  in 
arrear,  executed  a  deed,  Avhich  stated  that  lie  had  agreed  to  quii  Hie 
premises,  and  that  a  valuation  was  to  be  made  of  his  effects,  which 
were  in  the  mean  time  to  be  assigned  to  a  trustee  for  the  landlord. 
The  deed  accordingly  assigned  the  cilects  upon  trust  to  have  the  valua- 
tion made,  and  out  of  the  amount  to  retain  the  arrears  of  rent,  and  pay 
the  residue  to  the  tenant.  The  tenant,  however,  did  not  in  fact  quit 
possession,  nor  was  any  valuation  made  ;  and  it  was  held  that  the 
agreement  to  quit  being  conditional,  and  the  condition  not  having  been 
performed,  nor  the  agreement  in  any  manner  acted  uijon,  it  did  not 
operate  as  a  surrender  of  the  tenant's  legal  term  from  year  to  year,  and 
consequently  that  the  landlord's  right  to  distrain  for  the  arrears  of  rent 
continued  after  six  months  from  the  making  of  the  deed  (r). 

If  lessee  for  years  surrender  his  whole  term  to  the  original  lessor  upon 
condition,  he  may  upon  non-performance  of  the  condition  re-enter  and 
revive  the  term  (/). 

Lessee  for  life  made  a  lease  for  years,  rendering  rent,  and  after  sur- 
rendered to  the  lessor  upon  condition,  then  the  lessee  for  years  takes  a 
!icw  lease  for  years  of  the  lessor,  and  after  the  lessee  for  years  perfirmed 
the  condition,  and  evicted  the  lessee  for  years  who  c£-entereil,  and  Ua 
lessee  for  life  brought  debt  for  the  first  rent  reserved  ;  and  it  was  rukxl, 
that  it  was  not  maintainable,  for  the  lease  out  of  %\  hich  it  \s  as  reserved 
is  determined  and  gone  ;  for  though  the  surrcmler  of  the  tenant  for  'ife, 
which  made  the  lessee  for  years  immediate  tenant  to  the  first  lessor,  and 
so  enabled  him  to  make  such  surrender,  was  conditional,  yet  Ihc  dc- 

{aj  6  Exst.  6i:i.  (tj  3  Bur.  1807.  4  Bur    1980. 

(c,  Cora.  Dig.  til.  "  EiUWi"  (O    la  )  (d;  Co.  Lit.  21«.  b. 

,-     13  F.Mt.  101  /^  2  MfKt.   17«. 

'JO 


142  Of  Terms  for   Years  ahsoJuidyy        [Chap.  VI. 

feasance  of  the  estate  for  life  by  performance  of  the  condition  cannot 
defeat  the  estate  of  the  lessee  for  years,  which  was  absolute  and  well 
made,  and  then  the  rent  reserved  thereon  is  gone  likewise  (rt). 

If  lessee  for  years  of  lands  accepts  a  new  lease  by  indenture  of  part  of 
the  same  lands,  this  is  a  surrender  for  that  part  only,  and  not  for  the 
whole,  because  there  is  no  inconsistency  between  the  two  leases  for  any 
more  than  that  part  only  which  is  so  doubly  leased  ;  and  though  a  con- 
tract for  years  cannot  be  so  divided  or  severed,  as  to  be  avoided  for 
part  of  the  years,  and  to  subsist  for  the  residue,  either  by  act  of  the 
party  or  act  in  la^s  yet  the  land  itself  may  be  divided  or  severed,  and 
he  may  surrender  one  or  two  acres,  either  expressly  or  by  act  of  law, 
and  the  lease  for  the  residue  will  stand  good  and  untouched  (b'). 

As  to  surrenders  of  leases  m  futiiro  or  future  interests,  a  lessee  for 
years  of  a  term  to  begin  at  a  day  to  come  cannot  surrender  it  by  an 
actual  surrender  before  the  day  of  the  term  begin.  But  he  may  by  a 
surrender  in  law  (c). 

To  make  a  good  surrender  in  deed  of  lands,  these  things  are  requi- 
site. 1.  That  the  surrenderor  be  a  person  able  to  make,  and  the  sur- 
renderee a  person  capable  and  able  to  take  and  receive  a  surrender,  and 
that  they  both  have  such  estates  as  are  capable  of  a  surrender  ;  and  for 
this  purpose,  that  the  surrenderor  have  an  estate  in  possession  of  the  thing 
surrendered  at  the  time  of  the  surrender  made  ;  and  not  a  bare  right 
thereunto  only.  2.  That  the  surrender  be  to  him  that  hath  the  next 
inmiediate  estate  in  remainder  or  reversion,  and  that  there  be  no  inter- 
vening estate.  3.  That  there  be  a  privity  of  estate  between  the  surren- 
deror and  surrenderee.  4.  That  the  surrenderee  have  a  higher  and 
greater  estate  in  the  thing  surrendered  than  the  surrenderor  hath,  so 
that  the  estate  of  the  surrenderor  may  be  drowned  therein.  5.  That 
he  have  the  estate  in  his  own  right,  and  not  in  the  right  of  his  wife,  Sec 
6.  That  he  be  sole-seised  of  this  estate  in  remainder  or  reversion,  and 
Hot  in  joint-tenancy  (rf). 

Such  persons,  therefore,  as  are  disabled  to  grant,  are  disabled  to  sur- 
render (e)  ;  and  such  persons  as  are  disabled  to  take  by  a  grant,  are  dis- 
abled to  take  l)y  a  surrender  :  so  such  persons  as  may  be  grantees  may 
be  surrenderees,  therefore  a  surrender  to  an  infant  is  good,  provided  it 
be  a  surrender  in  law,  by  the  acceptance  of  a  new  lease,  and  that  such 
Iiew  lease  increase  his  term  or  decrease  his  rent ;  a  surrender  by  an  in- 
fant-lessee by  deed  is  absolutely  void  (/). 

In  respect  to  pleading  a  surrender  ;  if  a  surrender  be  by  acceptance 
of  a  new  lease,  it  is  not  good  to  say,  that  the  lessee  being  possessed  of 
a  former  lease,  the  lessor  demised  to  him  ;  but  that  the  lessee  surren- 

(a)  nac.  Abr.  tit.  "Leases"  (S.  3.  (i)  Jlac.   Ahr.  tit.  "  Lchbck"  (D.  3.V 

(c)  Shep.  Toucti.  -JOJ.   Cro.  Eliz.  522.  605.  '  fr/;  Slicp.  'Joueli.  J03. 

*<•;  *'''<1-  (./•)  Cro.  Car.  501. 


Heel.   II. J  or  on   ("(nulilinn,  iS'r.  11'^ 

dcred  and  then  the  !f5.sor  ikniiscd,  or  thai  the  lessor  enterctl  and  dtv 
raised  (a). 

So,  rei;tdarly  he  out^ht  to  plead  that  he  surrendered  the  estate  and 
land  ;  hut  if  the  party  plead  a  surrender  of  a  lease,  it  is  eulhcicnt  to 
say"  the  deniisr  aforesaitl." 

So  re<4ularly  he  oui,dit  to  shew,  that  the  lessor  assented  to  the  surren- 
der, where  the  other  party  pleads  or  hrin<;s  an  action  indisafTirmancc  of 
it  ;  hut  it  is  not  of  necessity,  and  tiie  omission  will  he  aided  after  ver- 
dict (/')  :  anil  when  it  is  pleadctl  that  the  lessor  ai^reed  to  the  surrender, 
it  shall  he  intended  that  he  entered  ;  and  it  is  not  usual  to  plead  a  re- 
entry upon  a  surrender,  no  more  than  when  a  feoHment  is  pleaded,  to 
plead  livery  and  seisin  thereof  ;  hecausc  it  is  admitted  (^ ). 

A  surrender  has  in  certain  circunihtances  heen  presumed,  where  evi- 
dence of  the  fact  was  not  to  be  had  :  indeed,  the  G)urt  u  ill  nut  nquire 
positive  proof  of  a  surrender  in  any  case  where  there  is  sulUcicnt  pre- 
sumi)sion  of  it  (</). 

Hut  there  must  he  presumption  of  the  surrender  from  some  facts  or 
circumstances  ;  for  lenj^th  of  time  alone  is  nothing  :  and  thouj^h  the 
Court  in  one  case  did  lay  it  down  that  after  a  recovery  of  forty  years 
staniling,  they  would  without  any  other  circumstances,  presume  a  con- 
ditional surrender  to  have  heen  made  by  the  tenant  for  life,  yet  there 
were  other  circumstances  in  the  case  to  induce  a  supposition  of  a  sur- 
render having  heen  made.  So  where  possession  had  not  gone  witji  the 
recovery,  the  Court  would  not  presume  a  surrender  by  the  tenant  for 
life. — Entry  in  an  attorney's  book  was  admitted  in  evidence  on  the 
subject  {(). 

A  surrender  of  a  lease  was  presumed  in  order  to  let  in  the  statute  of 
limitations  (/). 

Of  the  Rcncival  of  Leases. — Concerning;  the  renewal  of  leases,  some 
nice  points  occur  in  the  books,  touching  the  cuuatructiou  of  covenants 
for  that  purpose. 

A.  and  D.  covenant  in  a  lease  for  sixty-one  years,  that  at  any  time 
within  one  year  after  the  expiration  of  twenty  years  of  the  said  term  of 
sixty-one  years,  upon  the  request  of  the  lessee  and  his  paying  G/.  t'"*  tl>€ 
lessors,  they  would  execute  another  lease  of  the  premises  unto  the  les- 
see for  the  further  term  of  twenty  years,  to  conunencc  from  and  aflor 
the  expiration  of  the  said  term  of  sixty-o^p  years,  W'C  and  so,  in  liWe 
manner,  at  the  end  and  expiration  of  every  twenty  years,  during  the 
bdid  term  of  sixty-one  years,  for  the  like  consideration  and  upon  the 
like  request,  would  execute  another  lease  for  the  further  term  of  twenty 
\  ears,  <^r.  to  commence  at  and  from  the  expiration  of  the  term  then 
last  before  granted,  ftrc.  Under  this  covenant,  the  lessee  cannot  claim 
a  further  term  at  the  end  of  the  first  and  second  twenty  years  in    the 

'.«}  Com  Dig.  lit.  SurrenJfr     •  (6)  l\<\4.  (c)  Cro   Car.  501 

'.•*->  3 Bur.  J072.  II.IJ    1075.  lf)\  Bur.  IIB. 


144  Of  Terms  for  Years  ahsolulclij,        [Chap.  VI. 

lease ;  for  this  is  an  agreement  on  the  part  of  the  lessors  to  grant  a  further 
lease  on  a  precedent  condition  to  be  performed  by  the  lessee,  which  m 
the  principal  case  he  had  not  done  {a). 

Under  a  devise  of  seven  different  estates,  to  a  sister,  brothers,  and 
nephews  respectively,  one  to  each  stock  including  as  to  six  of  the  estates 
three  several  lives  in  succession,  on  each  estate  ;  and  as  to  the  seventh, 
which,  in  the  first  instance,  was  only  limited  to  two  persons  for  life  in 
succession,  giving  those  two  a  power  to  add  another  life  or  lives  to 
make  three,  in  like  manner  as  after  mentioned  for  other  persons  to  do 
the  same,  and  then  giving  this  general  power,  that  when  and  so  often 
as  the  lives  on  either  of  the  estates  before  given  shall  be  by  death  re- 
duced to  two  ;  that  then  it  shall  be  in  the  power  of  the  person,  or  per- 
sons, then  enjoying  the  said  estate  or  estates  to  renew  the  same  w  ith 
the  person,  or  persons,  to  whom  the  revenue  thereof  shall  belong,  by 
adding  a  third  life  in  such  estate  and  paying  such  reversioner  two  years' 
pv.rchase  for  such  renewal,  and  also  to  exchange  either  of  the  said  two 
lives  on  payment  of  one  year's  purchase  :  Held  that  this  power  of  re- 
newal only  authorised  the  addition  of  one  life  to  the  three  on  each  es- 
tate, and  of  making  one  exchange  of  a  life  (6). 

Where  a  lessor  covenants  that  if  a  lessee  surrender  at  any  time  during 
the  term,  he  will  grant  him  a  new  lease,  and  then  accepts  a  fine  of  the 
premises ;  this  is  a  breach  of  the  condition,  and  in  an  action  of  debt  on 
bond  for  the  performance  of  covenants,  the  lessee  need  not  shew  that 
he  offered  to  surrender  (c). 

Jf  a  lease  for  ninety-nine  years,  determinable  on  three  lives  be  con- 
veyed in  trust  for  A.  for  life,  and  A.  covenant  to  use  his  utmost  endea- 
vours as  often  as  any  of  the  persons  on  w^hose  lives  the  premises  are  held 
shall  die,  to  renew  the  same  by  purchasing  of  the  lord  of  the  fee  a 
ncAv  life  in  the  room  of  such  as  shall  fail,  it  is  no  breach  of  the  cove- 
nant if  upon  one  of  the  lives  failing  he  procure  a  renewal  upon  his  own 
life  (r/). 

A  lease  was  for  twenty-one  years  1/.  rent,  with  covenant  to  tenants 
to  renew  from  twenty-one  years  to  twenty-one  years,  to  make  up  ninety- 
nine  years ;  at  the  expiration  of  the  first  term,  an  arrear  of  rent  being 
due  and  no  application  being  made  for  a  renewal,  the  lessor  brought  an 
ejectment  and  obtained  judgment  and  possession ;  on  a  bill  filed  in 
Chancery  for  a  renewal  on  payment  of  the  rent  in  arrear  and  interest,  it 
was  decreed  ;  the  delay  being  accounted  for,  and  there  being  no  neglect 
on  the  part  of  the  lessee  or  prejudice  to  the  lessor  (<■).  But  where  it 
was  covenanted  that  the  lessor  would  renew  whenever  any  life  or  lives 
dropped,  provided  that  if  the  lessee,  his  executors  or  administrators, 
upon  or  after  the  death  of  any  of  the  life  or  lives,  shall  refuse  or  neglect 
to  renew  the  said  lease  or  make  application  therein,  Ac.  or  tender  such 

Co/  1  T.  R.  229  ih)  10  East  5l9.  (c)  Cowp.  819.    Cro.  Eliz.  4i0.  479. 

(d)  ;  Bos   &  Pnl.  «W.  (.t)  4  Br.  Jl.  415. 


Sect.  TI.]  or  on  Condition,  S>'c.  i  Ij 

new  lease,  and  payor  tender  a  certain  fiiie,  A-r.  then  the  indenture,  <\-(. 
to  l)c  void  ;  by  such  neglect  the  kf^sec  forfeits  his  riglit  of  renewal,  and 
may,  it  seems,  be  ejected  for  not  applying  when  the  first  life  chop- 
ped {a). 

An  agreement  was  in  \sriting  between  landlord  and  tenant,  signed 
by  the  landlord,  for  anew  lease  to  be  granted  at  any  time  after  the  com- 
pletion of  the  repairs  to  be  made  by  the  tenant  with  all  convenient 
speed,  but  l>lanks  were  left  for  the  day  of  commcnccjnent ;  the  repairs 
being  completed,  the  landlord  tendered  a  lease  to  commence  from  that 
t  ime,  and  on  refusal  fded  a  bill  in  Chancery  for  specific  performance ;  the 
answer  admitted  that  the  agreement  was  accepted;  but  insisted  that 
the  new  lease  was  not  to  commence  till  the  expiration  of  the  old  ;  and  so 
was  it  decreed,  parol  evidence  in  explanation  being  refused  (/>). 

The  lessor  of  the  i)Iaintill",  a  prebendary  of  Santw,  brought  an  eject- 
ment to  avoid  a  lease  made  by  his  predecessor,  as  nut  being  ct)nformable 
to  the  proviso  in  32  //.  8.  c,  28.  s.  2.  which  requires  that  upon  renewals, 
the  old  lease  must  be  expired,  surrenderetl,  or  ended  within  one  year 
next  after  making  the  new  lease:  and  his  objection  was  that  the  surren- 
der of  tlic  former  lease  was  with  the  condition,  that  if  the  then  preben- 
dary did  not  within  a  week  after  grtfnt  a  new  lease  for  three  lives,  the 
surrender  should  be  void  ;  whereby  tiie  whole  term  was  not  absolutely 
gone,  but  the  lessee  reserved  a  power  of  setting  it  up  again.  But  the 
court  held  this  to  be  within  the  statute,  which  was  that  there  should 
not  be  two  long  leases  standing  out  against  the  successor.  Here  the 
new  lease  was  made  witliin  the  week,  and  from  thence  it  became  an 
al)Solute  surrender  both  indeed  and  in  law  ;  and  the  whole  was  out  of 
the  lessee,  without  further  act  to  be  done  by  him.  In  the  proviso  there 
is  the  w  ord  tndrd  as  well  as  surrendered,  atid  can  any  body  say  the  first 
lease  is  not  at  an  end.  This  was  no  more  than  a  rca^onaijle  caution  in 
the  first  lessee  to  keep  some  hold  of  his  old  estate,  till  a  new  title  was 
made  him  (r). 

Where  a  lessor  covenanted  to  renew  the  lease  at  the  request  of  the 
lessee  within  the  term  ;  but  the  lessee  did  not  reciucst ;  his  executors 
however  did  request  within  the  term  :  it  was  objected  that  the  request 
ought  to  have  been  made  by  the  lessee,  and  not  by  his  executors  who 
nii;;ht  be  insolvent  persons,  and  consequently  the  lessor  in  danger  of 
losing  his  rent.  Hut  by  the  Lord  Chancellor  (Lord  Mciccles^ichV)  :  The 
executors  of  every  person  are  implied  in  himself  and  bound  without 
naming;  and  the  meaning  of  the  covenant  was  to  the  enti  that  the 
lessee  might  be  reiuiburse<l  the  money  which  he  had  laid  out  in  the  im- 
provement of  the  premises,  for  which  reason,  it  is  immaterial  whether  the 
testator  or  his  excrutors  rfrpiireil  the  renewal  of  the  lease,  it  need  not 
be  personal.     As  to  the  objection  that  the  executors  might  be  insol- 

la)  3  Vet.  j.in.  295.  (fc)  IbiJ  M.  '/)  3  Sir  1201. 


146  Of  Terms  for  Years  absolutely ^       [Chap.  VI. 

vent,  and  such  as  the  defendant  would  not  care  to  trust,  to  this  it  may 
be  answered,  that  a  clause  of  re-entry  is  in  the  lease,  and  the  value  of 
the  premises  being  doubled  l)y  the  improvements  of  the  original  lessee, 
such  clause  will  secure  the  landlord  against  any  insolvency  of  the  te- 
nant. The  usual  term  being  for  twenty-one  years,  let  the  defendant 
demise  the  premises  to  the  plaintiff  for  twenty-one  years,  or  for  any 
lesser  term,  as  the  plaintiff  shall  elect :  and  though  the  lease  is  to  be 
made  on  the  same  covenants,  yet  that  shall  not  take  in  a  covenant  for 
the  renewing  this  lease,  forasmuch  as  the  lease  would  never  be  at  an 
end  (ci).  [Lord  Hard/vicke  said  this  case  did  not  apply  as  an  authori- 
ty on  the  subject,  being  rather  like  an  award  and  a  compromise,  thaa 
a  decree  (i).     But  vide  post,  3  Ves.  Jun.  298.] 

AVhether  the  Lord  Chancellor's  apprehension  in  the  above  case,  of 
the  perpetuity  of  the  lease,  had  he  permitted  to  be  inserted  "cove- 
nants for  the  remaining  Jease,"  be  well  or  ill  founded  seems  rather 
doubtful. 

Indeed,  where  (r)  J.  demised  toJ5.  for  the  life  of  the  said  B.  and  also 
for  the  lives  of  C.  and  D.  and  covenanted  that  if  i?.  his  heirs,  <^c.  should 
be  minded  at  the  decease  of  the  said  B.  C.  and  D.  or  any  of  them,  to 
surrender  the  said  demise.and  tale  a  new  lease,  and  thereby  add  a  new 
life  to  the  then  tw  o  ir.:  -^^  ''ng  in  lieu  of  the  life  so  dying,  that  then  he  the 
said  J.  his  heirs,  i^^c.  u\)Oji  payment  of  every  life  so  to  be  added  in  lieu 
of  the  life  of  every  of  them  -rt^^  dying  would  grant  a  new  lease   for  the 
livesof  the  two  persons  named  in  the  former  lease  and  of  such  other 
person,  as  the  said  B.  his  heirs,  ^'a.  should  appoint  in  lieu  of  the  person 
named  in  the  preceding  lease,  as  thesame  should  respectively  die  "  un- 
der the  same  rents  and  covenants  :"  There  had  been  successive  renewals 
from  the  time  of  a  former  lease  granted  by  the  ancestor  of  J.   and  in 
each  a  like  covenant  of  renewal.  Ivord  Mansfield. — The  question  in  all 
these  cases  is  "  Whether  under  the  same  rents  and  covenants"  shall  be 
construed  inclusive  or  exclusive  of  the  cause  of  renewal.     Arguments 
drawn  from  every  part  of  the  agreement  are  material  :  here  the  parties 
themselves  have  put  the  construction  upon  it ;  for  there  have  been  fre- 
quent renewals,  and  in  all  of  them   the  covenant  of  renewal  has  been 
uniformly  repeated.     How  then  shall  the  Court  say  the  contrary? — 
U'illrs,  J.  The  act  of  the  parties  seems  to  diifer  in  this  case  from  all  the 
cases  cited  ;  here  there  have  been  four  or  five  renewals  all  in  thesame 
terms.  I  do  not  think  otherwise  that  Furnival  and  Cren^e  {d)  would  be  a 
fuiricieiit  authority  alone  to  determine  this  case  ;  because  there,  the  ad* 
dilional  words  "  and  so  to  continue  renewing  from  time  to  time"  were 
inserted.  But  the  case  of  Bridges  v.  Hitchcock  is  very  much  the  same 
as  this  :  for  there  the  words  were  "  under  the  same  rents  and  covenants," 
and  no  other  w  ords.     I  cannot  say  that   in   this   country  this  kind  of 

(<i;  2  1>   Wme   107.  (/))  3  Atk.  148.     Mod.  458. 

CO  towp.  81a.  2I!r.  R.  rr.9.  in  n.  (d)  ij  AtU.  83, 


bccL  II.]  or  on  ContlHinn,  A'r.  I  17 

lease  slioiild  he  much  favoiireil,  lliout^li  the  in'lucrmci't  fiir  i^raiiliii.; 
tiitiu  ill  In  hind  may  be  a  good  one.  Jsfii/rst,  J.  1  lliiiik  lliis  is  a  very 
hard  ca?c  on  the  part  of  the  lessor,  and  there  does  not  seem  any  nnitii- 
ality,  as  in  lliecase  of  improvement  (jflatid';.  Hut  as  there  have  luru 
four  successive  renewals,  the  lessor  himiiclthas  put  iiis  ownconstriiclioii 
upon  the  covenant;  and  therefore  is  bound  by  it.  Jiulltr,  J.  I  think 
the  case  of  Uridines  v.  Uitchrork  (a)  decides  this.  In  that  case 
botli  tfie  House  of  Lords  and  the  Kxclieqner  determined,  that  the  umhIs 
"  iiiKler  the  same  rents  uiul  roveiiants"  in  the/<r/i  Icasc^  containcil  a/'<  r- 
pttual  covenant  to  renew . 

Ihit  the  judi,Mnent  of  the  .Master  of  the  Rolls  (I.nrd  .llvanlrif)  in 
li  ii/nham  v.  dit'fs  Jlospictil  (^),(in  which  case  a  right  of  renewal  uas 
held  to  be  forfeited  by  the  laclies  of  the  tenant)   seems  to  demolish  a 
doctrine  which  goes  to  estal)lish  a  perpetuity,  which  the  law  abhors. 
Master  of  the  Rolls. — I  strons^ly  protest  against  the  ari^ument  used  by 
the  learned  judges  in  Cooke  v.  liooth,  Ci^np.  810.  as  to  constniiiii^  a  legal 
instrument  by  the  equivocal  acts  of  the  parties  and  their  nnderstandinq; 
upon  it ;  ^^hich  I  \\  ill  nc\cr  allow  to  afl'oct  my  mind,     'J'hat  case  uas 
sent  to  law  by  Lord  Bathurst.   The  learned  judijcb  thought  lit  to  return 
an  answer  to  the  Chancellor,  that  the  legal  e fleet  was  a  perpetual  re- 
newal, upon  the  ground,  that  by  voluntary  .-•  ♦'«•  which   the   parties 
might  or  might  not  have  done,  the  parties  r.itniselves  had  i)ut  a  con- 
struction upon  it.  I\Ir.  J.  IVillcs  stated,  tl-  .  as  his  only  ground  ;  Lord 
Mansfield  made  it  his  chief  ground  ;  butrtliat  ground  was  disapproved 
by  Lord  Thurloir  ;  and  is,  I  think,  totally  unfounded,  I  never  w  ill  con- 
strue a  covenant  so.     I  never  was  mo  e  amazed;  and  .Mr.  J.  Jn/sou, 
who  argued  it  witli  me,  was  astonished  at  it.     \\  hen  it  came  back, 
Lord  Jiiit/tiir.<;t  not  having  retained  the  great  seal  long  enough  for  it  to 
come  airain  before  liini,  it  came  to  Lord  Thurlow,  w  ho  saiil  that,  sitting 
as  Chancellor,  w  hen  he  asked  the  opinion  of  a  court  of  law,  w  hatever 
his  own  opinion  might  be,  he  was  bound  by  that  of  the  court  of  law  : 
therefore  he  decreed  a  renewal,  but  said  he  should  be  very  glad  if  .Mr. 
Booth  would  carry  it  to  a  superior  tribunal.     W'c  had  a  consultation, 
and  I  wrote  to  Mr.  li.  upon  it;  but  he,  being  only  tenant  for  life,  re- 
fused to  apjieal.  There  stands  the  case  of  Cooke  v.  liooth.    I  see  I  have 
put  a  note  upon  that  case  referring  to  Tritlon  v.  i'ootc  ((),  (in  which 
case  it  was  holden  that  a  covenant  of  renew  under  the  same  covenants 
is  exclusive  of  the  covenant  to  renewal)  wliich  is  a  positive  determina- 
tion against  the  claim.    I  collect,  therefore,  from  these  ca.ses,  this:  that 
the  courts  In  England  at  least,  lean  against  construing  a  covenant  to  be 
for  a  perpetual  renewal,  unless  it  is  perfectly  clear  that  the  covenant 
does  mean  it.  Fiiniivnl  v.  Crrnc,  relied  on  in  Cooke  v.  liooth,  had  clear 
words  for  a  perpetual  renewal,  which  made  it  impossible  to  cunt-true 
it  otherwise. 

''•!  1  Br  P   C  r.vt'  k;  n  Ve«  .111 '  -r**  '<•>  2Br   n  f.-\i 


148  Of  Terms  for  Years  absolutely,      [Chap.  VL 

One  in  consideration  of  51.  Ss.  in  nature  of  a  fine  and  of  a  yearly 
rent  of  6s.  9(i.  demised  certain  grounds  with  the  buildings,  &c.  for 
twenty-one  years  with  a  proviso  for  distress,  if  the  rent  were  in  arrear 
for  fourteen  days,  and  the  lessor  covenanted  at  the  end  of  eighteen  years 
of  the  term  or  before  on  request  of  the  lessee  to  grant  a  new  lease  of 
the  premises  for  the  like  fine  for  the  like  terra  of  twenty.one  years  at 
the  like  yearly  rents  with  all  covenants,  grants,  and  articles  as  in  that 
indenture  contained  ;  held  that  this  covenant  was  satisfied  by  the  ten- 
der of  a  new  lease  for  twenty-one  years  containing  all  the  former  cove- 
nants except  the  covenants  for  future  renewal,  and  held  that  an  aver- 
ment that  the  covenant  for  renewal  in  the  indenture  declared  on  cor- 
responded with  various  other  leases  before  then  successively  made  by 
the  owners  of  the  inheritance  for  the  time  being  could  not  be  taken  in 
aid  to  construe  the  meaning  of  the  indenture  ;  for  supposing  such  evi- 
dejice  admissible  in  any  case  where  the  renewals  had  been  uniformly 
the  same,  yet  non  con  stat  from  this  averment  that  all  the  former 
leases  contained  the  same  covenants  for  renewal  (a). 

Where  a  lease  contained  a  covenant  for  perpetual  renewal,  a  specific 
performance  was  refused  under  circumstances,  as  laches  and  alteration 
in  the  property,  so  that  it  could  not  be  enjoyed  according  to  the  stipu- 
lations (6). 

Tenant-right  ofreneival. — It  has  long  been  an  established  practice  to 
consider  those  who  are  in  the  possession  of  lands  under  leases  for  lives 
or  years,  particularly  from  the  crown,  colleges,  Src.  as  having  an  in- 
terest beyond  the  subsisting  term  ;  and  this  interest  is  usually  denomi- 
nated "  the  tenant-right  of  renewal,"  which  tenant  though  not  any 
certain  or  even  contingent  estate,  there  being  no  means  of  compelling  a 
renewal,  yet  it  is  so  adverted  to  in  all  transactions  relative  to  leasehold 
property,  that  it  influences  the  price  in  sales,  and  is  often  an  induce- 
ment to  accept  of  it  in  mortgages  and  settlements  (c). 

For  other  cases  on  this  subject  we  refer  to  the  cases  cited  below  (d), 
cautioning  the  reader  at  the  same  time  against  an  implicit  reliance,  as 
on  the  authority  in  points  applicable  to  English  law,  on  the  Irish  cases, 
which  turned  (as  has  been  observed)  on  a  vocal  equity. 

By  the  statute  4-  G.  2.  c.  28.  which  recites  that  whereas  many  persons 
hold  considerable  estates  by  leases  for  lives  or  years,  and  lease  out  the 
same  in  parcels  to  several  under-tenants,  and  whereas  many  of  those 
leases  cannot  by  law  be  renewed  without  a  surrender  of  all  the  under- 
leases derived  out  of  the  same,  so  that  it  is  in  the  power  of  any  such 
under-tenants  to  prevent  or  delay  the  renewing  of  the  principal  lease, 
by  refusing  to  surrender  their  under-leases,  notwithstanding  they  have 
covenanted  so  to  do,  to  the  great  prejudice  of  their  immediate  landlords 
the  first  lessees  ;  for  preventing  such  inconveniencies  and  for  making  the 

ia)7  East.  257.    2  Hos.  &  Pul.  X-  R.  449     -  (fc)  l4  Ves.  449.  (c)  5  Br.  Pari    Cas. 

{d)  1  lir.  r.  C.  240.  2til.  3U.  5.  Br.  P.  C,  2D.  ih    2  Bi:  R.  039.  in  n. 


Sfc'cl.  H.]  (>y  "It  (dudiitoity  i\  ( .  119 

rcncual  of  l(:i';c<;  more  e;isy  for  (lu"  fiiliiro,  it  is  enacted,  tliat  in  case  any 
lease  sliull  be  duly  Mirrcmltred  in  orilcr  to  he  renewed ;  unci  a  new  lease 
made  and  executed  by  the  chief  landlord  or  lantllords,  the  same  new 
lease  shall,  without  surrender  of  all  or  any  the  under-leases,  he  a^  good 
and  valid  to  all  intents  and  purposes  as  if  all  the  under-leases  derived 
thereout  had  been  likewise  surrendered  at  or  b(  fore  the  takint;  of  such 
new  lease  ;  and  every  person,  i<rr.  in  Mhoni  any  estate  for  life  or  lives, 
or  for  ytars,  shall  be  vested  by  virtue  of  such  new  lease,  and  his,  A'v. 
executors  and  adniinibtrators  shall  be  intilled  to  the  rents,  covenants, 
an<I  duties,  and  have  like  remedy  for  the  recovery  thereof,  and  the 
tinder-lessees  shall  hold  and  enjoy  the  nicssuagcs,  lands,  and  tenements, 
in  the  respective  under-leasen  c(jmprised,  as  if  the  original  lea.'^cs,  out  of 
which  the  respective  under  leases  are  derived,  had  bceti  still  kept  on  fo«>t 
and  continued  ;  and  the  chief  hmdlord  and  landlords  sliall  have  the 
same  remedy  liy  distress  and  entry  upon  the  mepsuaj!;cs,  ^~r.  for  rents,  AV. 
reserved  by  such  new  lease,  so  as  the  same  exceed  not  those  reserved  in 
the  least  out  of  which  such  under-lease  was  derived,  as  they  would  have 
had  in  case  such  former  lease  had  been  still  continued,  or  the  under- 
lease had  been  renew  cd  under  such  new  principal  lease,  s.  C. 

4.  Termination  hij  canciUing  the  Deed. — A  fourth  means  w hereby  a 
lease  may  be  [or  rather  might  have  been]  determined,  is  by  cancelling 
the  deed  by  which  it  isi^rantcd. 

Whatever  doubts  may  have  been  formerly  entertained  as  totheeflect 
of  erasing  or  otherwise  cancelling  a  lease  for  years,  now,  since  the 
statute  of  frauds  and  perjuries,  stat.  29  C.  2.  c.  3.  w  hich  makes  all  leases 
for  above  three  years  to  have  only  the  force  and  cITect  of  leases  at  will, 
unless  they  be  in  writing,  and  signed  by  the  party,  ^-c.  the  deed  or 
writing,  whereby  such  lease  is  made,  seems  to  be  of  the  same  essence  as 
the  lease  itself,  and  therefore  the  cancelling  or  destruction  of  that  seems 
to  destroy  and  avoid  the  lease  itself,  I)ecause  it  destroys  all  evidence  al- 
lowed by  law  for  llic  support  tliereof :  though  in  such  case  Chancery 
frequently  sets  uj>  tlie  lease  again,  or  decrees  the  party  to  execute  a  new- 
one  for  the  residue  of  the  term  ;  which  is  not  against  the  proliibition  of 
the  act ;  because  there  Was  once  a  good  and  ellectual  lease  made  pur- 
suant to  the  statute  [a). 

Though  that  statute  excepts  leases  not  exceeding  tlie  term  of  three 

years,  yet  even  these  are  not  absolutely  accepted  ;  for  it  goes  on,  not 

exceeding  the  terra  of  three  years  from  the  making  thereof,  whereupon 

1  the  rent  reserved  to  the  landlord  during  such  term  shall  amount  unto 

I  two-third  parts  at  least  of  the  full  improved  value  of  the  thinz  demised, 

,    and  that  no  leases,  estates,  or  interests  either  of  freehold  or  terms  for 

I  years,  or  any  uncertain  interest,  not  bein^:  copyhold   or  customary 

\\  interest  of,  in,  to,  or  out  of  any  messuages,  manors,  lands,  A'-c  shall 

i    be  ass-igned,  granted,  or  surrendered,  unless  it  b»  by  deed  or  note  in 


i 


r«)  Dae  Akr.  tif.  "  Lewes"    T.) 
21 


ioO  Of  Terms  for   Yair6  absolultlij,         [Cliap.  VI. 

Avriting  signed  by  the  party  so  assigning-,  granting,  or  surrendering  the 
same,  or  their  agents  thereunto  lawluhy  authorized  by  writing-,  or  by 
act  and  operation  of  law. 

Since  the  aliove  statutes  therefore,  it  sho;i!d  seem  that  a  deed  cannot 
be  determined  by  cancellation  of  the  indenture,  for  that  the  surrender 
by  deed  or  note  in  wriling  was  especially  prescribed  in  lieu  thereof. 

The  mere  cancelling;,  in  fact,  of  a  lease,  is  not  a  surrender  of  the 
term  t!-ereby  granted,  within  the  stat.  of  Frauds,  which  requires 
such  surrender  to  be  Ijy  deed  or  note  In  writing-  or  by  act  or  operation 
in  law  (r/). 

0.  Termination  btj  condition  indorsed.— A  lease  may  also  be  deter- 
mined l)y  force  of  a  condition  indorsed  upon  the  back  side  thereof,  if  it 
be  before  the  ensealing-  and  delivery  ;  as  well  as  by  force  of  a  condition 
within  the  deed  {b). 

A  proviso  in  a  lease  for  twenty-one  years,  that  if  either  of  the  par- 
ties Siiall  be  desirous  of  determining  it  in  seven  or  fourteen  years,  it 
siiall  be  lawful  for  either  of  them,  his  executors  or  administrators,  so  to 
do,  upon  twelve  months'  notice  to  the  other  of  them,  his  heirs,  execu- 
tors or  adminislra.tCprs,  extends,  by  reasonable  intendment,  to  the  de- 
visee of  the  lessor,  who  was  entitled  to  the  rent  and  reversion  (<-•). 

It  is  now  clearly  held,  that  to  avoid  the  consequences  of  I,' ♦■kruptcy, 
a  landlord  may  take  a  clause  that  the  lease  shall  determine  on  the  bank- 
ru])tcy  of  the  tenant ;  and  many  prudent  men  take  such  a  clause  (d). 

C.  Termination  bij  forfeiture  of  the  Lease. — The  sixth  and  last  mode 
by  which  a  demise  may  be  deterniined  is  by  forfeiture  of  his  lease. 

Any  act  of  the  lessee,  by  which  he  disafiirnis  or  impugns  the  title  of 
tis  lessor,  occasions  a  forfeiture  of  his  lease  ;  for  to  every  lease  the  law 
tacitly  annexes  a  condition,  that  if  the  Itsscc  do  any  thing  that  may 
ailect  the  interest  of  his  lessor,  the  lease  shall  be  void,  and  the  lessee 
may  re-enter ;  besides,  every  such  act  necessarily  determines  the  rela- 
tion of  landlord  and  tenant ;  since  to  claim  under  another,  and  at  the 
tame  time  to  controvert  his  title  ;  to  affect  to  hold  under  a  lease,  and 
at  the  same  time  to  destroy  that  interest  out  of  which  the  lease  arises? 
■would  be  the  most  palpable  inconsistency  (r).  • 

A  lessee  may  thus  incur  a  forfeiture  eitlicr  by  act  in pai,  or  by  matter 
of  record.  ]»y  matter  of  record  :  m  here  he  sues  out  a  writ  or  resorts 
to  a  remedy  which  claims  or  suppose? a  right  to  the  freehold  ;  or  where, 
iti  an  action  by  his  lessor,  grounded  upon  the  lease,  he  resists  the  de- 
mand luider  the  grant  of  a  higher  interest  in  the  land;  or  where  he 
acknowkdges  the  fee  to  be  in  a  stranger  ;  for  having  thus  solemnly  pro- 
tested against  the  right  of  his  lessor,  he  js  estopped  by  the  record  jrom 
claiming  an  interest  under  him.  By  act  in  pais :  as  where  he  aliens  tli 
estate  in  fee,  which  however,   (except  the  king;  be  in  reniaindei- 

(n^  r,  Enct.  6G1.         '  (t)  Cro.  Jac    45G.  (c)  12  Fas*.  461 

'■t)  15  Vr").  juii.  £CP.  (c)  Bac-  On  Leases    lly. 


Fi(  I.    II.  *'f  '^'''    (  oiidilioii,   >S"r.  J  1  j 

reversion,  in  which  case  a  feofTment  in  lee  will  efTcct  il,)  iiincl  he  by 
IcofTnu'iit  uith  livery  ;  for  th;it  only  operates  upon  the  posfc-^ion,  and 
aHVct<  a  tlisiijiion  ;  it  c;innot  he  hy  i,'r'nt,  or  any  conveyance  operating; 
only  on  the  tjrautor'sintereHt,  ami  passing  only  what  he  may  lawfully 
part  with;  nor  con->«'qnently,  can  it  ho  of  thiii.i^s  jyini;  in  , tyrant :  a 
lease  hy  the  tenant  for  nu)re  years  tlian  he  lias  in  the  land  is  still  more 
\(iiial  ;  because  it  is  only  a  contract  lielwcen  him  and  his  under-lessee 
(or  r.itlur  a.ssigne.e)  which  cannot  possibly  prejudice  the  Interest  of  the 
ori'^inallessor,  and  (h)e.s  not  even  i)r(tend  to  jisurp  or  toiicli  tlie  frc- 
hold  or  inheritance  (/»). 

A  forfeiture  by  tenant  for  years  in  levyini,'  a  fine,  not  havina:  been 
taken  advaiitat^c  of  by  the  entry  of  t  lie  then  reversioner  to  avoid  the 
lease, caimot  be  taken  advantage  ofaftrr  the  reversion  has  been  convey- 
ed away,  so  as  to  recover  the  estate  in  cjeitmciit  from  the  tenant,  upon 
the  several  denu'ses  of  the  grantor  and  grantee  of  such  reversion  (/>). 

A  forfeiture  is  also  incurred  by  tlic  breach  of  express  or  conven- 
tionary  con<litlons :  for  the  lessor,  having  the  jt/s  disponcndi,  may  an. 
nex  w  hatcver  conditions  he  pleases  to  his  ijrant  ;  provided  they  be  not 
illegal,  unreasonable,  or  repugnant  to  the  grant  itself,  and  upon  the 
broach  of  these  conditions  may  avoid  the  lease  (r). 

Therefore,  though  it  lias  been  held  that  a  lessee  might  make  a 
feoH'mcnt,  and  that  notwithstanding  the  presence  of  the  lessor,  for 
that  tlie  lessee  has  the  possession  and  may  dispose  of  it,  yet  it  was 
an  extinguishment  of  the  lease,  and  the  lessor  might  enter  for  the  for- 
feiture [(['). 

The  law  however  will  always  lean  against  forfeitures,  as  courts 
of  equity  relieve  against  them :  and  as  courts  adhere  strictly  to  the 
precise  words  oi  the  condition  in  order  to  prevent  a  forfeiture ;  so, 
where  a  forfeiture  has  manifestly  been  committed,  they  will  not 
allow  the  lessor  to  tal  ••  advantage  of  it,  if  they  fmd  tiiat  he  has 
afterwards  done  any  act  that  amounts  to  a  waiver  of  it ;  as  by  accept- 
ance of  rent  due  after  the  forfeiture  incurred,  or  action  brought  to  re- 
cover the  same  (r). 

Forfeitures  of  leases  stand  on  the  same  gronnd  with  forfeitures  of 
copyholds;  and  there  are  a  great  many  cases  in  the  old  books,  where  it 
i*:  held,  that  a  mere  knowledge  and  acquiescence  in  an  act  constituting 
a  forftitiue,does  not  amount  to  a  waiver,  but  there  must  be  some  act 
aitirming  the  tenancy  (/). 

The  forfeit  ore  must  be  known  to  the  lessor  at  the  time,  in  order  to 
rcnc^'i^is  acceptajice  of  rent  or  any  other  act  a  waiver  (r;)  ;  for  it  has 
been  established  in  many  cases,  that  acceptance  of  rent  shall  not  operate 
I-  a  waiver  of  the  forfeiture,  or  as  a  confirmation  of  the   tenancy, 

{<!)  Bac  on  Uase<i   IH.  (6)  13  East.  m.  (c)  2T  R.  137.  Cowp.  805. 

,'./)  Cro.  F.lir.  322.  («)  Hull.  N.  P.  96.  Dec.  nn  Ltues  3SG.  3.  T.  H.   170.2  Co«|>  2»7. 

■  '     i  Tiuut  80.  (g^  Cn».  C«r.  251. 


152  Of  Terms  for  Years  absolutely,      [Chap.  VI. 

unless  the  landlord  has  notice  that  a   forfeiture  was  incurred  at  the 
time  (fl). 

So,  when  it  is  said  that  a  forfeiture  may  be  waived,  it  must  be  un- 
derstood to  apply  to  those  cases  in  which,  by  the  terms  of  the  contract, 
the  estate,  upon  the  tenant  doing  or  failin:^  to  do  that  which  he  has 
stipulated  to  abstain  from  or  to  perform,  is  determinable,  and  not  where 
it  absolutely  determines ;  for,  it  is  to  be  observed,  that  where  the  es^ 
tate  or  lease  is  ipso  facto  void  by  the  condition  or  limitation,  no  ac- 
ceptance of  rent  afterwards  can  make  it  to  have  a  continuance,  other- 
wise it  is  of  an  estate  or  lease  voidable  by  entry  {b). 

A  tenant  for  life,  having  power  to  grant  build  iug  leases  for  sixty-one 
years,  reserving  the  best  improved  ground  rent,  granted  a  lease  for 
that  term,  which  was  not  expressed  to  be  a  building  lease  but  which 
contained  a  covenant  by  the  lessee  to  keep  in  repair  the  premises  demised 
(old  houses)  "  or  such  other  house  as  should  be  built  during  the  term." 
Held  that  this  is  not  a  building  lease  within  the  power  (r).  Such  a 
lease  being  granted  by  tenant  for  life,  who  had  a  bare  naked  power 
without  any  legal  interest,  is  void,  and  consequently  not  capable  of  be- 
ing confirmed  !)y  the  remainder-man  accepting  rent  {d). 

Indeed  it  is  undoubted  law,  that  though  an  acceptance  of  rent  may 
make  a  voidable  lease  good,  it  cannot  make  valid  a  deed  or  a  lease 
which  was  actually  void  at  first  [e). 

If  J.  tenant  for  life  subject  to  forfeiture,  remainder  over  to  B.  lease 
to  C.  for  a  term,  and  afterwards,  apprehending  that  he  has  forfeited, 
acquiesce  in  D's.  claim  to  and  receipt  of  the  rent  from  C.  his  executor 
may,  on  shewing  that  he  acquiesced  under  a  false  apprehension,  recover 
from  C.  the  amount  of  the  rent  erroneously  paid  to  B. ;  for  in  order  to 
constitute  a  confirmation  of  the  payment,  some  act  must  appear  to  have 
been  done  by  A.  with  knowledge  of  his  own  situation. — Suppose,  said 
Mr.  J.  Buller,  that  one  disseises  another  of  ah  state,  and  continues  in 
possession  of  the  rents  and  profits  with  the  knowledge  of  the  disseisee, 
will  any  body  say  that  the  disseisee  shall  not  recover  against  the 
tenant  (/). 

A  lessee  under  a  lease  which  contained  a  proviso  against  exercising 
certain  trades,  under-let  the  premises  to  one,  who  partitioned  off  tlie 
shop  into  two  apartments,  in  one  of  which  he  carried  on  the  business  of 
a  fish-monger^  and  the  other  he  let  on  lease  lo  a  butcher.  The  landlord 
lived  next  door,  and  was  witness  to  the  conversion  of  the  premises  to  those 
uses,  but  though  the  under-lessee  paid  his  rent  to  the  lessee,  no  payment 
of  rent  was  proved  to  have  been  made  to  the  landlord  subsequently? (^the 
alteration.  After  a  lapse  of  six  years  the  landlord  brought  an  ejectment, 
and  it  was  held,  that  his  long  forbearance  was  nut  a  waiver  of  the  for- 

(n)  2T.  R.  431.  Cro.  Eliz.  220.  (6)  Dotigl.  5?.  [29.]  (c)  Willes.   IS9. 

(d)  Cro.  Car  32L'.  Co^Tp-  432.  («)  Willes.  176.  (f)  1  Bos.  fc  Pul.326. 


Sect  II.]  or  on  Condi  I  ion,  (SV.  1.'53 

Ifiturc,  l>ut  that  sonic  jjositivc  act  of  >\.iiver,  as  receipt  of  nnt,  is 
ncctJihary  ;  Imt  it  was  said,  that  it  tlir  lan«iloi(l  had  lain  l>y  and  '•(  di 
money  laid  out  in  iinprovcinpiits,  that  uouhi  have  lurn  a  cimiUK-tance 
IVoni  whicli  a  jury  mii;ht  imply  consent  to  the  alteration  («/). 

Under  a  proviso  of  re-entry  upon  iindcr-leltin.:,  an  advertisenuni  in- 
serted by  the  tenant  in  a  pulilic  paper,  stating' that  a  lca>cof  tlie  pnini- 
ses  wouhl  l)e  uranted,  does  not  anKJimt  to  a  forl'eitnre  (/;). 

Of  Leases  in  rroerdon. — W  itii  respect  to  U'ascs  in  reversion,  it  is  to 
be  observetl  that  "  all  leases  where  there  is  a  particular  estate  out, 
are  leases  in  reversion."  (r). 

Thus  if  one  lets  a  manor  for  thirty  years,  and  the  next  day  lets  it  to 
another  for  forty  years  to  commence  from  Mit  harlmas  next  after  tiie 
tiate ;  this  passes  a  reversionary  interest ;  for  the  lease  beinij  for  years  is 
a  chattel  which  may  well  expect  or  wait  ;  and  if  I  have  a  rent  in  tee  I 
may  grant  it  for  years  to  conimence  at  M'uhai  Imns ;  for  an  estate  d<ilh 
not  pass,  hot  an  interest. 

So,  a  husband  may  make  a  lease  of  lands  held  in  joint-tenancy  with 
his  wife,  to  commence  after  his  death,  ami  it  uill  l)ei;ood  thiuic;h  the 
wife  survive:  for  the  Inisband  liaving;  an  interest  to  dispo'e  of  in  his 
life,  he  miijht  dsipose  of  all  the  term,  and  it  should  bind  the  wife  ;  so 
vhen  he  hatli  disposed  by  an  act  executed  in  his  life  of  the  interest  of 
the  term,  ami  hath  created  a  term  in  interest,  this  is  as  good  as  if  he  had 
gran'eil  all  the  term  (r/). 

As  to  the  manner  of  making  such  leases  for  years  where  there  is  a 
prior  lease  or  estate  then  in  beincc,  they  cannot  be  made  by  parol  lease  ; 
for  besides  that  by  the  statute  of  Frauds  and  perjuries  (^),  no  parol  leaso 
for  above  three  years  is  to  have  any  other  eri<<  t  than  only  as  a  lease  at 
viil,  adeed  is  of  the  very  essence  of  the  grant  of  a  reversion,  or  rever- 
sionary interest,  and  w  ithont  it  no  reversion  or  reversionary  interest  can 
pass  out  of  the  lessor.  Such  leases  therefore  must  be  made  by  either 
tlecd-poll,  or  indenture  (/). 

If  one  makes  a  lease  for  life,  and  afterwards  grants  that  the  lands  or 
reversion  shall  remain  to  another  for  twenty-one  years  after  the  death  of 
the  tenant  for  life,  these  \sordsare  sullicient  to  pass  a  reversionary  in- 
terest  l)y  nay  of  future  lease,  though  there  is  not  the  word  "  diniiH," 
or  any  other  word  nsiial  or  proper  to  describe  a  lease  for  years  by  ;  for 
here,  bring  words  suflicient  to  prove  a  present  contract  for  the  rever- 
sionary interest  of  these  lands,  after  the  estate  for  life  determined,  these 
in  case  of  lease  for  years,  wliich  is  but  a  contract,  arc  in  themselves 
sufficient  and  adequate  to  any  other  form  (:,>•). 

A  le;xse  in  reversion  of  several  pnrcels  of  land.  mad«  to  commence 
on  the    happening  of  several  contingencies,  shall  (as  has  been    ob> 

(n^  I  Ro<i   UVm\    78.  (6)  I  Vei.  ii  Beam.  68  •  (c)  Dour  M*^ 

(rfi  Cro    Elir.2«7.  (t)  23  C.  2.  c  3.  {/)  B»c  Ibr.  Ut.  "  Uwct,"  (N^ 

iX)  Ibid.  (K.) 


f 


154  Of  Terms  for  Years  ahsolutel}/,        [Chap.  VI. 

served)  take  elTect  and  commence  respectively  as  those  contingencies 
happen  ((-/). 

If  one  iiid  made  a  lease  for  life,  or  for  eighty  years,  if  the  lessee 
should  so  long  live,  and  after  by  indenture  let  the  same  lands  to  another 
for  yrars  to  begin  presently,  and  then  the  first  lease  determined  by 
death,  surreniier,  or  forfeiture,  the  second  lessee  should  have  the  lands 
in  possession  presently  for  the  residue  of  the  years,  because  such  second 
lease,  by  reason  of  tlie  estoppel,  took  eilect  Ijetween  the  parties  pre- 
sently, and  therefore  shall  come  in  possession  whenever  the  first  lease  is 
out  of  the  way ;  but  if  such  second  lease  had  been  only  by  deed-poll, 
there  must  have  been  an  attornment  to  have  made  it  good  as  a  grant  of 
the  reversion,  as  there  must  likewise  in  the  other  case,  where  it  was 
made  by  indenture  ;  and  without  such  attornment  the  second  lease 
could  only  have  taken  effect  in  possession  upon  the  determination  of 
the  first  lease  by  the  death  of  the  lessee  ^cording  to  the  express  limita- 
tion ;  and  not  upon  any  sooner  or  other  determination  by  surrender, 
forfeiture,  or  otherwise  {0). 

The  nature  of  a  lease  in  reversion  we  have  more  particularly  ex- 
plained in  Chap.  III.  Sect.  VII. 

0/  Attornment. — Touching  the  subject  of  attornment,   (which  now 
exists  scarcely  in  any  case)  it  may  be  as  well  to  observe,  that  after  the 
statute  quia  emptores  terrarum  (r)  was  passed,  by  which  subinfeudation 
■Ras  prohibited,  it  became  necessary  that  w hen  the  reversioner  or  re- 
mainder-man after  an  estate  for  years,  for  life,  or  in  tail,  granted  his 
rcvei'sion  or  remainder,  the  particular  tenant  should  attorn,  or  consent 
to  pay  his  rent,  !k.c.  to  the  grantee.     This  necessity  of  attornment  was 
in  some  degree  diminished  by  tlie  statute  of  usei  (c/),  as  by  thit  statute 
the  possession  was  immediately  executed  to  the  use  ;  and  by  tiie  statute 
of  wills,  by  which  the  legal  estate  is  immediately  vested  in  the  devisee : 
attornments  however  are  now  rendered  almost  unnecessary  in  any  case, 
by  the  statute  of  Anne^  which  enacts  that  all  grants  and  conveyances  of 
manors,  lands,  rents,  reversions,  <^c.  by  fine  or  olnerwise,  shall  be  good 
A\ilhout  the  attornment  of  the  tenants  ;  but  notice  must  be  given  of 
the  grant  to   the  tenant,  before   which  he  shall  not  be  prejudiced  by 
payment  of  any  rent  to  the  grantor,  or  of  breach  of  the  condition  for 
non-payment  (£>).     A!so,  by  an  act  (/)  in  the  last  rci^n,  attornments 
of  lands,  ^c.  made  by  tenants  to  strangers  claiming  title  to  the  es- 
tate of  their  landlords  shall  be  null  and  void,  and  their  landlord's 
possession  not  clfected  thereby  :  the  statute,  however,  docs  not  extend 
to  vacate  any  attornment  made  pursuant  to  a  judgment  at  law,  or 

(Avith  the  consent  of  the  landlord  ;  or  to  a  mortgagee  on  a  forfeited 
mortgage. 

(n)  Cro.  F.Iiz.   199.  (fc)  Bac.  Abr.  til.  "Leases."  (N.)  W  I8E.1.  St.  1. 

(rf)  27  H.  c  10.  ■  (e)  Vide  31  fa  35  H.  8.  c.  5.  i  Ann.  c  IC.  s.  9     1  T.  U,  .-579. 

(/■)  II  C.  2.  c.  19. 


^■c{,  I  I.J  or  on  Condilion,  S>'<:  l.'i.'i 

Of  Estoppel. —  /..-.;..  i  for  j/rars  sontetinus  niurc  Ay  nnj/  ofcstoftprl^ 
uhlch  wnicl  si^lli^l(^'?  an  inipciliment  or  bar  to  a  man's  invalidating  his 
own  soltn\n  a<  t. 

TlicroftUf,  if  out-  makes  a  lease  f.u  yMr,  \>y  indcnlure,  of  lands 
..  Iicrtin  lie  halh  nulliina;  at  the  time  of  siieh  lease  made,  and  afleruards 
purcUiiSes  those  very  lands,  this  shall  make  his  lease  as  good  and  nn- 
uvoi(lal)le  ai;  if  In-  had  been  in  the  actual  possession  ajid  seisin  then(d  at 
llie  time  of  such  leanc  made  ;  hecanse  he  having  hy  iiidenlnic  expressly 
cl<  niiscd  those  lands,  is  by  his  ow  n  act  estopped  and  conc!;ided  to  siiy 
that  he  did  not  demi'^^e  them,  and  if  hecann.tt  aver  th.it  he  did  not  de- 
mise tiieui,  then  there  is  nothing  to  impeach  tlic  validity  of  tlic  indcn- 
liirr,  whidi  expressly  ailirms  that  he  did  demise  them,  und  consequent- 
ly the  lessee  may  take  advantai^c  thereof,  wlienevcr  the  lessor  comes  to 
?iich  an  estate  in  those  lands  as  is  capable  to  sustain  and  support  that 
leasf  ;  for  an  rstopjnl  that  tifr  (is  the  inUrcsl  ufllie  land  i/tall  run  nilU  it 
into  n/ioic  hands  soever  the  land  eomvs  («). 

]>ut  if  it  appear,  by  recitals  in  the  lease,  that  lie  had  nothii^i;  at  the 
time  of  the  demise,  and  afterwards  he  purchases  liic  i.iii.!w  a,.  .ir.'rt>ai(l, 
that  will  not  enure  by  estoppel  (A). 

This  estoppel  ^y  indenture  is  so  mutual  and  reciprocal,  that  if  a 
man  takes  a  lease  for  years  by  indenture  of  his  own  iands,  wherioi  he 
hiujself  is  in  actual  seisin  and  possession,  this  estops  him  d.-rlji^lhe 
t^Min  to  say  that  the  lessor  has  notliini;;  in  the  lands  at  the  time  of  the 
•     ;  made  but  that  lie  liimsclf  or  such  otiier  person  was  tiien  in  actual 
r  .    11  and  possession  tliereof;  for  by  acceptance  thereof  by  ijukiiiurc, 
he  is  for  the  time  as  perfect  a  lessee  for  years,  as  if  the  lessor  iiad  at 
the  time  of  makini,^  thereof  the  absolute  fee  and  inheritance  in  him. 
liut  if  such  lessee  of  his  own  lands,  bciuij  ejected  by  the  lessor,  should 
bring  an  ejectment,  and  the  lessor  shoultl  jilead  nof  guilty,  and  nivo  the 
lease  and  some  matter  of  forfeiture  thereof  in  evidence  to  support  his 
plea,   without  pleading,  and   relying  on  the  estoppel,  and  the  jury 
should  find  the  special  matter,  viz.  liiat  the  defendant  had  iiolijuii;  iji 
the  lands  at  the  time  of  such  lease  made,  but  that  the  plaintili"  himself 
Avas  then  in  actual  seisin  and  possession  thereof,  whether  the  Court, 
upon  this  verdict,  are  bound  to  adjudge  according  to  the  truth  of  the 
case,  namely,  that  such  lease  ])y  one  w  ho  had  then  nothing  in  the  lands 
was  void  ;  or  if  Ihcy  arc  to  adjudge  according  to- the  law,  workitig  by 
way  of  estoppel  upon  such  lease  by  indenture,  seems  to  be  a  doubt 
upon  the  books ;  bid  Lord  Coke  lays  it  (low  n  for  a  rule,  ih.il  the  jury  do 
well  to  liiid  tiic  tnilh,  vr:.  that  the  less(<r  had  then  nothing  in  the 
land  ;  but  then  upon  such  finding,  the  Court  is  to  adjudge,  according 
k)  the  operation  of  law  upon  tlie  estoppel  wrought  to  botii  parties  by 

■*]  Bjc    Air-  tit.  "  L«t«-n"  (O)    S.  MoU.  iis.     :;  I  I    Ttum.   I   11    <   r      1   v,i, 
«    0    J    T    R      - 


356  Of  Terms  for    Years  alsolufeli/y      [Chap.  VI. 

the  indenture,  that  they  are  bound:  and  this  seems  to  be  the  better 
opinion  (  '). 

Thcreiore  in  debt  for  rent  upon  an  indenture,  if  the  defendant 
plead  7iil  debet,  he  cannot  give  in  evidence  that  the  plaintill  had  nothing 
in  tiie  tenements,  because  if  he  had  pleaded  it  specially,  the  plaintiff 
might  have  replied  the  indenture,  and  estopped  him,  or  might  demur, 
for  the  declaration  being  on  the  indenture,  the  estoppel  appears  on 
record.  But  if  defendant  plead  nihil  habidt,  8rc.  and  the  plaintiff 
■will  not  rely  on  the  estoppel,  but  reply  habuit^  the  jury  shall  find  the 
truth  (Jj). 

But  if  such  lease  for  years  were  made  by  deed-poll  of  lands,  wherein 
the  lessor  had  nothing,  this  would  not  estop  the  lessee  to  aver  that  the 
lessor  had  nothing  in  those  lands  at  the  time  of  the  lease  made,  because 
the  deed  poll  is  only  the  deed  of  the  lessor,  and  made  in  the  first  or 
third  person  ;  whereas  the  indenture  is  the  deed  of  both  parties,  and 
both  are,  as  it  were,  put  in  and  shut  up  by  the  indenture.  This  how- 
ever is  where  both  parties  seal  and  execute  the  indenture  as  they  may 
and  ought,  for  otherwise,  if  the  lessor  only  seals  and  executes  it,  the 
lessee  seems  to  be  no  more  concluded  than  if  the  lease  were  by  deed- 
poll  ;  for  it  is  only  the  sealing  and  delivery  of  the  indenture  as  his  deed 
that  binds  the  lessee,  and  not  his  being  barely  named  therein,  for  so  he 
is  in  the  deed-poll ;  but  that  being  only  sealed  and  delivered  by  the 
lessor,  can  only  bind  him,  and  not  the  lessee,  who  is  not  to  seal  and 
execute  it ;  yet  it  should  seem  that  such  lease  by  deed-poll  binds  the 
lessor  himself  as  much  as  if  it  were  by  indenture,  because  it  is  executed 
on  his  part  with  the  very  same  solemnity,  and  therefore  it  should  seem 
he  is  bound  by  such  lease  by  way  of  estoppel  (r). 

Estoppels  ought  to  be  mutual,  otherwise  neither  party  is  bound  by 
them;  therefore,  if  a  man  take  a  lease  for  years  of  his  own  lands  from 
an  infant  or  feme-covert  by  indenture,  this  works  no  estoppel  on  either 
jiart,  because  the  infant  or  feme,  by  reason  of  their  disability  to 
contract,  are  not  estopped ;  tlierefore  neither  shall  the  lessee  be  es- 
topped  (r/). 

So,  if  a  man  take  a  lease  for  years  of  his  own  lands  by  patent  from 
the  king,  rendering  rent,  this  shall  not  estop  the  lessee,  as  an  inden- 
ture between  conuiion  persons  in  such  case  would  do,  because  the 
king  cannot  be  estopped  ;  and  if  he  be  not  estopped,  neither  shall  the 
lessee  ('-). 

If  one  lets  lands  to  me  by  deed  enrolled,  unknown  to  me,  and  brings 
debt  upon  the  lease,  1  may  say  ne  Icssapas,  it  seems;  but  he  who  made 
such  lease  is  concluded  to  say  the  contrary,  which  is  in  point  to  estab- 
lish, that  in  cabc  of  a  deeil-poll  (as  this  which  is  called  a  deed  enrolled 

(fi    Bic    Abr.  «(  nutt.  (^<^  Bull.  N    P.  170.    Salk.  277  cited.     2  Ld.  Raym.  1154.  155!. 

(cj  Lac    Abr.  tit.  "Leases"  (O.j  (d)  Ibid    Co.  tit.  352.  (e)  Bac    Abr.  ^U  atue. 


-((1.   II.  or  on  Condilion,  S,'c.  I.j7 

iiiiist  l>c  intciiilwl  to  1)1-)  the  Icisor  hiniscU"  is  ifitoppcl,  tllOll^ll  the 
lessee  be  at  lari;c  :  and  this  cannot  he  intended  an  indenture,  because 
Ihen  the  lessee  would  have  been  cstoppeil  likewise,  if  he  had  sealed  it, 
which  ill  till';  r  '  -  m pear*  ho  did  not,  becau'-e  it  was  unknown  to 
him,  an<l  tiicr-  .  iiol  stopped,  whether  it  were  by  indenliin' r)r 

defd-pull. 

The>e  eitop|>e(^  continue  no  Ion:;er  on  cillicr  part  than  diiriii^^  the 
lea'^e  ;  for  as  they  bc:^jn  at  first  l)y  niakuiij;  the  lea",  so  by  determina- 
tion of  the  lease,  they  arc  at  an  end  likewise  for  then  both  j»arts  of  the 
iuilenture  belong  to  the  lessor  («). 

When  an  interest  actually  p.i5.*es  by  lln:  lea;--,  then;  ^Ila'l  bi;  no 
<  loppel  ;  though  the  interest  p;irporled  to  be  granted  l)'e  really  great- 
er than  the  lessor  at  that  time  had  power  to  grant  :  as  if  .V.  kssee  fr)r 
tl»e  life  of  />.  makes  a  lease  for  years  by  iu'Icnture,  and  after  piuehases 
the  reversion  in  fee,  and  tlien  />.  dieth, -'/.  shall  avoid  his  own  lease, 
though  several  of  the  years  ex  pressed  in  itl>e  still  toeumc:  f^rheniay 
confess  and  avoi«l  tlie  lease  wliich  took  effect  in  point  of  int>"i'cst,  and 
determined  l)y  the  death  oi  B.  (A). 

If  a  man  takes  a  lease  for  years  of  tlic  herbage  of  his  own  la.id  !  y 
indenture,  this  is  no  conclusion  to  say  that  the  lessor  had  nolliir.g  in 
tlie  lajids  at  tl'.c  time  of  the  lease  made;  because  it  was  not  mah-  of 
the  lands  themselves  (r). 

If  //.  seised  of  ten  acres,  and  H.  of  other  ten  acres,  join  in  a  lease 
for  years  by  indcnturci  they  are  several  leases  according  to  their  several 
estates,  and  no  estoppel  is  wrought  by  the  indenture  to  either  parly, 
because  each  has  an  estate  whereout  such  lease  for  years  or  interest  may 
be  derived  ;  and  the  reason  why  estoppels  arc  at  any  time  allowed  is, 
because  otherwise,  when  the  party  had  notliing  in  the  lands,  the  in- 
denture must  beabsoiutcly  void,  w  hich  would  be  hard  to  say,  when  the 
p;irly  hath  under  his  hand  and  seal  done  all  in  his  power  to  make  it 
good  ;  and  since  it  can  be  good  m  otherw  ise,  it  siiail  be  good  by 
estoppel,  rather  than  be  al)SolutcIy  void;  but  when  an  interest  passes 
from  each  lessor,  the  indenture  works  upon  such  interests  ij  carry  that, 
and  therefore  leaves  no  room  for  its  operating  by  way  of  estoppel  ;  but 
yet,  since  both  equallyjoincd  in  the  lease,  without  distinguisiiing  the 
several  interests  they  had  therein,  the  indenture  works  by  way  of  con- 
firmation, with  respect  to  each  from  whom  the  whole  interest  did  not 
pass  ;  that  is  J.'s  confirmation  for  B.'s  pari,  and  Ji.'s  conurmation  for 
J.'s  part  (.'). 

So,  if  two  tenants  in  common  of  Im  Is  jiin  in  a  Ka>>:  r>r  years  ?)y 
indenture  of  their  several  lands,  this  shall  be  the  leasee  of  each  for  their 
respective  parts,  and  the  cross  confirmation  of  each  for  the  part  of  the 
other,  and  no  estoppel  on  cither  part ;  because  an  actual  interest  passes 

(n)  Co  Lit  47.  Cr»  Ells  33.  (b;  Co.  Ll»- 47.  U  V>  UiiJ. 

;«i  tbid.  ij  a.  B*;  Ahr  lit    "LeMCS"  (O). 


158  Of  Tcnni^  far    Years  absoIuUhj,         [^'hap.-VI. 

from  eaeh  respectively,  aiul  excludes  Iheiicccfsity  of  an  estoppel,  whick 
is  never  admitted,  if  by  any  construction  it  can  he  avoided,  as  l)eing  one 
of  those  thinp;s  which  the  law  Iw^ks  npon  as  odious,  Ijccausc  it  clokes 
and  disguises  the  truth  {a). 

But  if  two  joint-tenants  for  life  or  in  fee,  join  in  a  lease  for  years 
l)y  indenture,  reserving,  the  rent  to  oiie  of  them  only,  this-  shall  give 
him  the  rent  exclusive  of  the  other :  and  here  the  estoppel  turns  not  up- 
on the  iiitercst  passed  by  the  lease,  for  that  is  several  according  to  their 
several  rights  as  in  tlie  other  cases,  which  excludes  any  estoppel,  but  it 
turns  upon  tlie  reservation  of  the  rent,  which  being  made  in  this  man- 
ner, to  one  exclusive  of  the  other  by  indenture,  ^\orks  an  estoppel 
against  ail  the  parties  to  sny  the  contrary  ;  and  though  the  rent  issues 
out  of  one  part  as  auII  as  the  other,  yet  it  not  being  part  of  the  tliing 
demised,  but  moving,  as  it  were,  rather  by  way  of  grant  from  thelcs- 
■scc  after  the  lease  made,  tlie  lessors  are  considered  as  accepting  it  in 
this  manner  by  indenture,  "whicli  concludes  them  as  wCll  as  it  doth  the- 
lessee  (/). 

But  if  t!ie  lease  had  been  by  parol  or  deed-poll,  reserving  rent  to  the 
one  joint-tenant  only,  this  would  not  have  excluded  the  other  joint-te- 
nant from  an  equal  share  therein  ;  ijtcause  this  reservation  coming,  as  it 
Mere,  by  way  of  grant  from  the  lessee,  and  bein;^oniy  I)y  {)arol  or  deed, 
pall,  could  not  conclude  the  lessors,  who,  with  respect  to  the  rent,  were 
as  it  were  grantees,  and  only  passive;  and  the.  rent  shall  follow  the 
reversion  in  proportion  to  their  several  estates,  and  so  let  in  botli  parties 
to  an  eq'.iai  participation  thereof  (<-■). 

If  two  coparceners  join  in  a  lease  for  years,  by  indenture,  of  their 
several  parts,  this  i-' said  in  one  book  to  be  but  as  one  lease:  because 
they  have  not  several  freeholds  therein,  but  only  one,  as  both  making 
but  one  heir,  and  therefore  shall  join  in  an  assize  ;  but  where  in  eject- 
ment the  plaintiir  declared  of  a  lease  by  two  coparceners  quod  dcndscrunt, 
exception  being  taken  to  it,  the  exception  was  allowed,  because  the 
lease  w  as  several  as  to  eacli  coparcener  foT  their  own  respective  moiety ; 
and  this  seems  to  be  the  better  law,  because  though  they  have  but  one 
freehold  with  regard  to  their  ancestor,  and  therefore  if  disseised,  shall 
join  in  an  assize,  yet  as  to  their  disposing  power  thereof  they  have  se- 
veral rights  and  interests,  so  that  neither  of  them  can  lease  or  giv;q 
auay  the  whole  {d). 

But  where  the  declaration  in  ejectment  was  of  thcjoint-demiseof  ^. 
and  B.  and  on  evidence  it  appeared  that  they  were  tenants  in  common, 
the  plaint  ill"  failed  (c). 

A  lease  for  years  may  operate  as  to  part  by  estoppel,  and  as  to  the 
Tesidue  by  passing  an  interest  (/). 

(a)  Co.  Lit.  45.  a.  Bar.  Abr  tit.  "  Leasps"  (O). 

(t)   Ibid.  Co.  Lit.  47.  a.  Gill.,  on  Kejits,  63.  (r)  U>i(1. 

(rf)  liacAbr fit.  "  I  ea.Cb"  (O).  (t)  Co- Lit  45.  a  {/)  Ea!V.275. 


-Ml.   ii.  or  an  i<ni(lili<>ii,  A/.  1  j'.f 

DtM  on  howil  loiidilioiu'il  for  the  p'Tfoniiaiioi:  by  A'.  '/.  of  .ili  tlic 
.  ovcnaiits  on  \\\<  [uwi  mcntioncil  in  a  ctrtiin  inilcnttirL',  hcari.i^  even 
dale  ui'Ij  llic  I»on.|,  niaileor  cxinc.-seil  to  be  nude  between  tlie  plaiuliil 
and  llie  siitl  I{.  (,'.  !»lca,  that  before  the  execution  of  the  bond  it  uis 
agreed  t'lat  the  plaint iifs^liould  lmmmI  to  A'.  (/.  a  kasc  under  certain 
covenanls,.ind  Ih  it  the  delVnd.int  -houUI  enter  inloa  bo:id  as  surely  for 
the  performance  of  thopc  covenants ;  lliat  the.  deli  tidanl  di<l  accordini^ly 
enter  into  the  bond  on  uhieli  the  action  ua.s  brou^hl,  and  that  tlie  in- 
tlenlnre  mentioned  in  the  romlilion  thereof  is  the  lease  so  ai^reed 
upuj  and  no  other  ;  but  that  the  said  lease  neVer  was  executed.  On 
denii/rrer,  it  was  htid  tiiat  the  defendant  was  estopped  by  the  condi- 
tion of  the  bond  from  pleatlin;;  liiis  |»lea.  Lord  J'./dutt,  C.  J.  observed, 
that  the  condition  (jf  the  bond   was  for  the  perforujance  of  covenants 

onpriseil  in  a  certain  indenture  "  niaiLe  or  expressed  to  be  made"  be- 
tween the  trustees  and  the  defeiulant  :  and  that  the  object  «>f  introduc- 
ing tliose  words  scenud  to  liave  been,  that  wlielher  the  execution  of  the 
inilcnlure  coiiM  be  proveil  or  not,  tlie  covenants  contained  in  the  pa- 
per writing  which  purported  to  be  an  indenture  between  the  trustees 
am":  the  d«'fendant  should  be  considered  as  the  covenants  of  llie  defend- 
ant (<;). 

As  to  estoppels,  though  the  reason  why  they  are  allowed  seems  to  be, 
that  no  man  ought  to  allege  any  thin^  but  the  truth  for  his  defence,  and 
w  hat  he  has  alleged  once  is  to  be  presumed  true,  and  therefore  he 
ought  not  to  contradict  it,  for  allciruns  conlriu'ui  non  est  audirndtis  (/>)  ; 
yet,  estoppels  in  general  are  not  to  be  favouretl ;  they  are  to  be  extended 
only  as  far  as  positive  rules  have  gone,  because  the  tendency  of  them  is 
to  prevent  the  investigation  of  the  truth  of  the  case  (r). 

Of  future  Interests  being  l/arrrd. — Respecting  future  interests,  as  to 
their  being  barrctl  or  destroyeil,  it  has  already  appeareil,  that  all  leases 
for  years  at  conunon  law  when  they  come  in  esse,  are  to  be  e-\eculed  by 
the  entry  of  the  lessee  ,  but  as  to  future  interests,  it  hius  been  cleariy 
held,  that  if  one  make  a  lease  to  commence  two  years  after,  when  the 
two  years  sliall  have  expired,  the  lessee  before  any  entry  may  j!:rant  hit 
term,  although  the  lessor  continues  in  possession,  because  such  lessee's 

I teresse  termini y  was  not  divested  or  turned  to  a  right,  but  contiiuicd 
in  him  in  the  same  manner  as  it  was  at  first  granted,  and  in  the  same 
manner  Jic  transfers  it  over  to  another,  who  by  his  entry  may  reduce  it 

ito  possession  whenever  he  thinks  fit  {d). 

One  made  a  leafc  for  years,  to  begin  after  the  end  of  a  former  lease  for 
^ears  then  in  being  ;  the  fust  lease  determined,  and  before  entry  of  the 

•  rond  lessee,  he  in  reversion  entered  and  niade  a  feofTment  in  fee,  and 
levied  a  fine  with  proclamations,  and  five  years  passed  without  entry  or 
*'um  of  I  he. second  lessee,  and  if  his  term  were  barred  ?  was  the  (|ne^tion. 

1)  a  Roi.  it  Pul    r^9.  (fc>  Co.  Mt  343.  o.  I. 

;.-.  4  T    K.  ?Si.  8  Mod.  ll"».  i    Bac.  Ahr    Ut    "  Leue*."  (P  )  Cco- Elit.  157. 


1  GO  Of  Terms  for  Years  ahsoluklij,        [Chap.  VI« 

It  was  adji  d^cd,  that  by  lliis  fine  and  non-claim  liis  term  was  barred, 
because  after  the  first  lease  expired,  the  second  leafc  was  actually  then 
come  in  esse,  and  reducible  into  iiosscssion  by  an  entry  presently,  and 
then  his  not  entering,  wliicli  was  liis  own  fault  and  laches,  could  not 
stop  the  operation  of  the  fine  from  running  against  liim  {a). 

But  if  sucli  fine  had  been  levied  during  the  continiiancc  of  the  first 
lease,  it  Avas  agreed,  that  in  such  case  the  operation  thereof  should  nt;t 
be;:i;in  to  run  out  against  the  second  lessee  till  the  first  lease  Avere  deter- 
juined,  because  till  tlsen  the  second  lease  Avas  only  an  mtcrcssc  termini, 
A\hich  tlie  second  lessee  could  not  reduce  into  possession  by  any  entry 
till  the  first  lease  determined,  and  therefore  was  not  obliged  to  take 
notice  of  the  acts  of  strangers,  or  of  the  ter-tenant  in  possession  ;  for 
if  such  future  interest  might  he  diA^ested  before  it  came  in  essc^iht  lessee 
or  grantee  thereof,  having  never  entered,  would  have  no  means  to  revest 
it, and  therefore  till  it  comes  in  esse,  the  law  takes  care  to  secure  it  to  the 
lessee  or  grantee  in  the  same  manner  as  it  was  at  first  granted  ;  but  when 
the  first  lease  is  at  an  end,  then  the  second  lessee  is  to  take  care  of  it 
himself,  and  if  he  suffer  five  years  to  elapse  after  that  time  aa  ithout  en- 
try or  claim,  this  will  bar  sach  interest,  because  his  right  then  com- 
mences in  possession,  and  from  thenceforth  the  operation  of  the  fine  be- 
gins to  run  on  against  him.  The  case  in  Xoij  123  has  been  denied  by 
'J^ivischn  to  be  law  (';). 

As  the  lessee  must  enter  whtn  his  lease  comes  into  pos^session,  so,  if 
lie  enters  before  it,  it  Avill  be  a  disseisin,  and  no  continuance  of  posses- 
sion, though  after  the  term  actually  begins,  Avill  purge  the  disseisin,  or 
alter  the  estate  of  the  lessee  (r). 

Yet  debt  lies  for  the  rent  in  respect  of  tlie  privity  of  contract  upon 
tlic  lease  made  (d). 

Where  one  declared  of  a,  lease  10  April  habendian  from  the  annun- 
ciation last  past  for  ten  years,  "  by  virtue  of  which  he  entered  and  had 
the  tenements  aforesaid  from  the  said  annunciation  :"  this  Avas  held 
good,  and  that  the  lessee  Avas  no  disseiser  ;  for  it  shall  be  intended  that 
lie  entered  and  occupied  before  by  agreement ;  and  a  diversity  was  taken 
between  this  case,  Avhcre  the  commencement  of  the  lease  is  limited 
from  a  time  past,  and  that  Avhere  it  is  limited  to  begin  at  a  t  ime  to  come, 
in  Avhichease  the  entry  of  the  lessee  before  that  period  is  a  disseisin  {e). 

Of  Terms  in  trust. — As  to  terms  or  leases  for  years  in  trust,  the 
relation  of  landlord  and  tenant  is  little,  if  at  all,  elucidated  by  a  con- 
sideration of  them  ;  but  as  they  have  occasionally  been  mentioned  in 
tlie  course  of  the  Avork,  it  may  not  perhaps  be  superfluous  shortly  to 
notice  them. 

Tlipso  terms  are  cither  vested  in  trusters  for  the  use  of  particular 
persons,  or  for  particidar  purposes,  or  else  upon  trust  to  attend  the  in- 
heritance. In  the  first  case  they  are  c:dled  terms  in  gross  ;and  the  pcr- 

(a)  nac.  Ahr.  ul  ante.  Cro.  Jac.  m.      a  Mod.  193.     1 1.d    Hay.  179. 

rt;  Ba:.  Abr.  u.' ri.We.  fc;Cio    L'liz.  16'  ''•'     Ib.d.  f.- M  l>  i -!.  SO'?-. 


,"-",4  it.    li.J  0/    (HI   (  luulilUHi,   \(.  |».l 

sons  riititleil  to  ihe.  Iieiiciici.il  intficst,  h:ive  a  rii;Iit  in  c/^miy  to  ciill  on 
the  tnislco', or  persons  who  have  tlie  legal  iiitircst  in  the  term,  lor  the 
rents  ami  proliis  of  t  lie  l.uids,  and  als»»  lor  an  ahsolnlc  assignment  of  tlie 
term  ((/). 

It  has  hccn  helJ,  lli:it  il"  a  man  he.  ccsfui,/nc  (nisf  of  a  term,  it  i-  not 
assets  within  the  st.itnte  of  frauds  (A). 

It  has  heen  hcl  I  hy  tlie  eoiirl,  that  a  fine  levied  in  pursjiancc  of  a 
trust  cannot  destroy  any  Ic;l«c  made  by  ccstui^ntr  trust ;  hut  thoiiqh  a 
Anc  by  ccstuiquc  trust  ilocs  not  dciitroy  or  cxtin;;uish  the  trust,  yet  it  is 
not  safe  to  <lo  it,  by  reason  of  the  datv^er  of  not  beinq  able,  to  prove  an 
ai,'reeiuent  to  the  ccutrary. 

I'pon  trial  of  ar>  issue  out  of  Chan((  i  y,  it  was  upon  i  \  iiii  me  .i.-iced, 
that  if  one  made  a  lease  for  an  hundred  years  in  trust  fur  himself  ami 
his  wife,  and  afterwards  tliey  both  join  in  levyinc;  a  fine  to  a  purchaser 
I'M"  a  valuable  consideration  who  had  no  mtice  of  this  lease  in  trust, 
tlioui^h  the  line  does  not  convey  the  term  itself  to  the  conu/.ee,  the 
«'stale  in  law  being  in  the  trustee,  yet  this  dc-^troys  the  trust,  so  that 
tlie  lease  shall  not  hurt  the  purchaser. 

Terms  atteiulant  on  the  inheritance  owe  their  existence  to  tlie  follovv- 
itiof  circumstances.  When  terms  for  years  became  fully  established, 
and  the  interest  of  the  term  was  secured  against  tiic  efi'ect  of  fictitious 
recoveries,  lon^  terms  became  common:  in  all  cases  of  this  kind,  though 
the  purposes  for  which  Hie  term  was  raised  were  fully  satisfied,  yet  it 
did  not  determine,  so  that  the  legal  interest  continued  in  the  trustee;  but 
IS  the  owner  of  the  inheritance  wasentitlctl  to  ail  the  benefit  and  advan- 
las^e  of  it,  the  term  became,  in  fact,  consolidated  with  the  inheritance, 
i.'id  is  usnally  called  a  term  attendant  on  the  inheritance  (r ) 

Of  Leases  by  nay  of  Mortgage. — Tenant  for  years  may  also  be 
created  by  way  of  mortgage,  the  nature  of  which  is  explained  in 
Chap.  111.  Hed.  XIV.  ^\'c  shall  therefore  merely  again  observe, 
that 

As  to  mortgages,  by  way  of  crcatins;  terms,  this  was  formerly  by 
uay  of  demise  and  rt-deniLsc,  as  for  example ;  ./.  borrowed  money  of 
11.  whereupon  ./.  would  demise  the  land  to  B.  for  a  termof  otX)  Set. 
years  absolutely,  w  ith  common  covejianls,  against  incumbrances  and  for 
firthcr  assurance,  and  then  /J.  would  the  day  after  rc-dcmise  to  A.  for 
J'J'J  years,  with  condition  to  be  void  on  non-payment  of  the  money  at 
the  day  to  cumc.  This  manner  of  mortgaging  came  in  after  the  21  //. 
8.  r.  1.5.  for  falsifying  recoveries,  when  a  fixed  interest  was  settled  in 
terms  for  years:  it  was  esteemed  best  for  the  mortgagor,  because  it 
avoided  all  manner  of  pretention  from  the  incumbrancer  and  dower  of 
the  fcoiu-e  in  mortgage, and  it  w  as  reputed  best  for  mortijagce,  inasmuch 
as  itavo*»letl  the  wardbiiip  and  feudal  duties  of  the  tenure,  atid  was 

,'«;  Criij  Dis.  li!    .XU.c.J.  '        ■•  - 


162  Of  Terms  for  Years  ahsolultlj/,  6,'c.   [Chap.  Vf. 

only  inconvenient  in  this — that  if  the  second  deed  were  lost,  there 
appeared  to  be  an  absolute  term  in  the  mortgsgee  (r/). 

Tlie  common  method  of  mortgaging  however,  is  by  a  demise  of  the 
land  for  a  term,  under  a  condition  to  be  void  on  payment  of  the  mort- 
gage-money and  interest;  and  a  covenant  is  inserted  at  the  end  of  the 
deed,  that  till  default  shall  be  made  in  the  payment  of  the  money  bor- 
rowed, the  mortgagor  shall  receive  the  rents  and  profits,  A\ithout  ac- 
count {b). 

A  mortgage  in  the  form  of  a  lease  \vas  granted  of  a  feme-covert's 
estate,  by  the  husband  and  wife.  After  the  husband's  death,  the  deed 
being  in  the  hands  of  the  mortgagee,  the  widow  had  directed  the  te- 
nants in  possession  to  attorn  to  the  mortgagee,  had  settled  with  him  for 
the  balance  of  the  rents,  styling  him  mortgagee,  and  had  not  questioned 
his  possession  for  many  years.  In  delivering  the  judgment  of  the  Courtj. 
Lord  Mansfield  said,  that  they  were  all  of  opinion  that  the  conveyance 
in  tliis  case,  though  in  the  form  of  a  lease,  was  in  substance  a  mort- 
gage, and  not  being  wit -lin  the  reason  for  which  leases  by  a  feme-covert 
are  held  to  be  only  voidable,  w  as  absolutely  void  on  the  death  of  the 
husband  :  but  that  the  acts  done  by  the  widow,  the  deed  being  in  pos- 
session of  the  mortgagee,  were  tantamount  to  a  re-delivery,  which, 
without  are-execution,  is  equivalent  to  anew  grant  (c). 

Where  the  lease  is  not  a  beneficial  lease,  it  is  for  the  interest  of  the 
mortgagee  to  continue  the  tenant ;  and  where  it  is,  the  tenant  may  put 
himself  in  the  place  of  the  mortgagor,  and  either  redeem  himself  or  get 
a  friend  to  do  it  {d). 

Upon  a  refusal  of  the  money  by  the  mortgagor,  a  tender  being  made 
at  the  place  and  at  some  time  of  the  day  specified  in  the  condition,  the 
condition  is  saved  for  ever,  and  the  land  is  discharged,  because  upon 
the  tender  the  demise  is  void  (e). 

But  if  one  mortgage  his  reversion  in  fee  to  the  lessee  for  years,  where- 
by his  term  is  surrendered,  and  afterwards  pays  the  money  pursuant  to 
the  condition,  yet  his  term  shall  be  extinguished  and  not  revived  (/). 

(a)  Bac.  Abr.  tit.  "  Mortgage"'  (A).  (h)  Ibid. 

(e)  Do.)g.53    [17]  (rf)  Doug.  22. 

(»;  J'ac.  At.r.  m.  "Mortgage"  (D.)  {f)  Com.  Dig.  til.  "  Surrender"  (L.  1)  3  Leon.  6. 


CI  I A  IT  KH   MI. 

For  ti/uil  Til  III  Ijtascs  rnnij  ht  iiimfi. 

SECTION   1.       Of    1\ lutnts  from    Yiar  tu    )iur,    nhirtin  of 

Sotirt    to  ijttif. 
Miction    II.        Of    Tiiutnts  for    a    las     Trriiu    n  In  rein    oj 

J  jodiXiitiiS. 
^KiTiON   III.     Of  strict   Tamnts  at    U'i'l. 
''(jCTio.N   I\'.     n/'  'JViiants  at  Sulfnaiur. 


''KCTio.v  I.       Of  Tenants  from    Year  to    Y^ear,  ulirrcin  of 

Sot  ice  to  quit. 

Til  AT  wliirli  was  formerly  considcrerl  as  a  tenancy  at  will  has  been 
fiticc  junprily  coii^trucd  to  enure  as  a  tenancy  from  year  to  year  (^/), 
Mhicli,  tlurcfore,  may  now  be  said  to  l)C  wliin  a  man  lets  lands  or  te- 
nements to  another,  without  limiting  any  certain  or  determinate  estate ; 
«  pecially  if  an  annual  rent  l>c  reserved  {b). 

A  general  parol  demise,  therefore,  nt  an  annual  rent,  where  the  hulk 

•f  the  farm  is  enclosed  and  a  small  part  of  it  in  the  open  common 

;<  I(h,  is  only  a  lease  from  year  to  year  ;  and  not  for  euch  time  as  the 

round  of  hushandry  continues  (r).     But  where  the  crop,  as  of  li(iuo- 

1  ii'c,  madder,  cV'<.  does  not  come  to  perfection  in  less  than  two  years, 

t  mii^ht  be  otherwise  (r/). 

Averment  in  a  declaration  that  plain! iff  was  possessed  of  premises 
for  the  remainder  of  a  certain  term  of  years  then  unexpired  therein, 
.  hich  he  agreed  to  assign  to  the  defendant,  is  supported  by  evidence  of 
a  tenancy  from  year  to  y^ar  (c). 

The  distinction  taken  between  a  tenant  from  year  to  year  and  a  te- 
nant for  a  term  of  years,  is  rathci  a  ilistinction  in  words,  than  in  sub- 
btancc.  A  tenant  from  year  to  year  is  entitled  to  estovers,  and  the  same 
advantages  as  a  tenant  for  a  term  of  years ;  in  truth,  he  is  a  tenant  from 
year  to  year  as  long  as  both  parties  please:  and  considering  how  many 
large  estates  are  held  by  this  tenure,  it  would  be  dangerous  to  say  that 
the  term  ceased  at  the  end  of  the  year  (/*). 

It  would  be  extremely  nnjubt,  that  a  tenant  who  orcnpie'=  land,  should, 
after  he  has  sown  it,  be  turned  out  of  possession  without  reasonable 

(a)  a  Tf.  n.  3  T    R    1«.  (6'  Com  DIT.  tit.  "  Cutw"  (H.  I) 

(c)3  Bl    R    1171.  id)  IbiJ. 

itj  I  Cimpb   ;n7  vO  »  T.  R   i"??. 


iGi  Of  Tenants  from   Year  to   Year,     [Chap.  VII. 

notice  to  quit ;  and  it  \vas  in  order  to  avoid  so  unjust  a  measure,  that 
£0  lon^  ago  as  in  the  time  of  the  Ycar-Books  it  was  held  that  a  general 
occupation  was  an  occupation  from  Tear  to  year,  and  that  tiie  tenant 
could  not  ])e  turned  out  of  possession  without  reasonahlo  notice  to 
quit ;  and  that  rule  lias  always  prevailed  since  {a).  The  doctrine,  in 
trulJi,  respecting  notice  to  quit  was  Jaid  down  as  early  as  the  reign  of 
Henri/  VIII.   (b). 

Toucliing  the  distinction  between  six  montlis'  and  half  a  year's  no- 
tice, the  case  in  the  Ycar-Books  requires  lialf  a  year's  notice  ;  for  the 
moment  the  year  began  the  tenant  had  a  right  to  hold  to  the  end  of 
that  year  (r).  The  six  months'  notice,  therefore,  means  half  a  year, 
and  not  merely  the  space  of  six  months  at  any  time  of  the  year ;  foi-  such 
half  year's  notice  must  expire  at  the  end  of  the  year,  or  it  w  ill  not  be  a 
good  notice  [d). 

Premises  are  let  from  year  to  year  upon  an  agreement  that  either 
party  may  determine  the  tenancy  by  a  quarter's  notice ;  this  notice  must 
expire  at  tliat  period  of  the  year  when  the  tenancy  commenced  (c). 

Where  a  tenant  by  lease  continues  to  hold  after  the  expiration  of  it, 
as  tenant  at  \vijl,  and  assigns  to  another,  the  tenancy  of  tlie  assignee 
shall  be  held  to  commence  at  the  day  on  which  it  commenced  under  the 
lease,  and  a  notice  to  quit  on  that  day  only  is  good,  notwithstanding 
the  assignee  came  in  on  a  different  day. 

In  tenancies  from  year  to  year,  there  must  be  six  months'  notice  on 
cither  side  to  quit,  according  to  the  ancient  law  ;  except  where  any  spe- 
cial agreement,  or  the  custom  of  particular  places,  intervenes  (/). 

Where  rent  is  reserved  quarterly,  it  does  not  dispense  with  the  regu- 
lar six  months'  notice  to  quit  required  by  law ;  but  is  merely  a  collateral 
matter  (g-). 

So,  though  a  lease  be  void  by  the  statute  of  frauds  as  to  the  duration 
of  tlie  term,  the  tenant  holds  under  the  terms  of  the  lease  in  other  re- 
spects ;  and  therefore  the  landlord  can  only  put  an  end  to  the  tenancy 
at  the  expiration  of  Ihe  year  (/<). 

If  there  be  a  lease  for  a  year,  and  by  consent  of  both  parties  the  te- 
nant continue  in  possession  afterwards,  the  law  implies  a  tacit  renova- 
tion of  the  contract ;  for  where  a  tenant  holds  over  after  the  expiration 
of  his  term,  without  having  entered  into  any  new  contract,  he  holds 
ujwn  the  former  terms :  they  arc  therefore  supjwsed  to  have  renewed 
the  old  agreement,  \\liich  was  to  hold  for  a  year.  Hut  tlien  it  is  neces- 
sary, for  (he  sake  of  convenience,  that  if  either  party  should  be  inclined 
to  change  his  mind,  lie  should  give  the  other  half  a  year's  notice  before 
the  expiration  of  IJie  next  or  any  following  year  (/). 

("«;  7  T.  R.  85.  (b)  1   T.  R.  16X   13  11.  R.  15.  h.  (c)  ll.id. 

(rf)  2  Salk.  413.     3  Wils.  25.     1   H.   Bl.  97.     1   T.  M.  IS3.     I   Esp.  R.  26$. 

(O  2  Camp.  678.  (/)  :.'  Hi. -li.   l:i55.    3  T.U.   17. 

f';  1  Esp.  R.  206.  (A)  5  T.  It  471.  (V;  I  T.  R.  162. 


<n{.  I.]  u  lit  I  tin  of  yutici   lo  (jiitt.  If'.i 

So,  vlure  Iciiaiit  lor  life  ^M•mlts  a  Icisc  for  years  uliich  i>  \oA 
against  the  rfiuaiiulir-inaii,  and  tin-  latter,  l)cforc  he  elects  to  avoid  it, 
receives  rent  iVoin  tin*  tenant,  wlurcl))  a  tenancy  from  year  lo  year  is 
created,  yi  t  this  is  with  refcrrnce  to  the  oM  term,  and  the  relore  a  half 
year's  notice  lo<iiut  from  the  remiiiidci-inan  ciiditrj;  with  the  old  year, 
fs  good  {a). 

So,  where  tenant  for  life  makes  a  lease  for  years,  to  commeiiro  on 
a  certain  day,  and  dies  helorc  the  expiration  of  the  lease,  in  the 
luidtllc  of  the  year;  the  remainder-man  receives  rent  from  the  les- 
see, (who  continues  in  possession,  hut  not  under  a  fresh  lease)  for 
two  years  together  on  the  days  of  payment  mentioned  in  the  lease: 
this  V.  as  held  to  l)e  evidence  from  wjjicii  an  a'^reement  will  he  presumed 
to  subsist  l)ctween  the  remainder- man  and  the  lessee,  that  the  h;;s»ie 
>houId  continue  to liold  from  tlie  day,  and  according  to  the  terms  of 
(he  lease  ;  so  tliat  notice  to  quit  emliiigon  that  day  is  proper  {(>). 

Tenant  in  tail  having  received  an  ancient  rent  of  1/.  ISs.  ijd.  Is  "m 
the  lessee  in  the  possession  luuier  a  voiti  lease  granted  by  tenant  for 
life  under  a  power,  the  rack  rent  value  of  whicli  was  30/.  a  year,  can- 
not maintain  an  eji^ctment  laying  his  demise,  at  least,  on  a  prior  day 
without  giving  the  lessee  some  notice  to  quit,  so  as  to  make  him  a 
trespasser  after  such  recognition  of  a  lawf(d  possession  cither  in  relation 
•f  tenant,  or  at  least  as  continuing  hy  suHerancelill  notice  (r). 

It  once  was  doubted,  whether  if  the  landlord  or  tenant  died,  the  same 
notice  to  his  executors  or  administrators  was  necessary  as  would  have 
been  requisite  had  he  lived  ;  and  it  was  even  suggested  that  a  month's 
notice  in  smh  case  would  sufiicc  (J). 

It  is  no»v  settled,  however,  that  in  the  case  of  a  tenancy  from  year 
to  year  as  long  as  both  parties  jjlcase,  if  the  tenant  die  intestate,  his  ad- 
ministratcrr,  as  his  legal  representative,  has  the  same  interest  in  the 
land  which  his  intestate  had ;  for  such  tenancy  is  a  chattel  interest,  and 
w  hatever  chattel  the  intestate  had  must  vest  in  liis  administrator  as  his 
'''gal  representative  (r). 

So  half  a  yciir's  notice  to  quit  must  be  given  to  a  tenant  ;d  will 
(that  is  to  say  a  yearly  tenant)  or  his  evcculor,  or  an  ejectment  will 
not  lie  (/). 

This  principle  is  ?o  settled  that  it  has  been  adjudicd  (^0  that  the 
cccutor  of  a  tenant  from  year  to  year  of  an  estate  under  ID/,  a  year, 
may  gain  a  settlement  by  residing  on  it  forty  days:  on  the  ground  {/nUr 
alttt)  that  he  resided  on  an  estate  of  his  own  and  conti»uied  there  forty 
days  irremovable;  and  that  he  had  a  permanent  interest  (whether  b.ne- 
ficial  or  not,  was  immaterial  for  this  purpose)  in  it.  \\  hile  his  office  of  exe- 
4*uior  continued.     Lanrcncc,  J.  observed  that  it  was  settled  in  D.  d. 

(«)  1  T.  R.8J   7T  R  t-n.  2  E.,-   R.  SOI.  (b)  I  H.  Bl.  97  (c;  10  Eail   361. 

Irf)  1  Bl.  H.  S»<i  \.;  3  T   R.  IC  (fj  3  Wil«.  3i.  (^,  s  T    R.  JBS. 


16{i  (JJ   Ttiianls  /n>m   year  to   leur,      [Chap.   Vii. 

Shore  V.  Purler,  (3  T.  R.  13.)  that  if  a  tenant  who  held  from  year  to 
year  died  intestate,  his  administrator  has  the  same  interest  in  the  land 
that  the  intestate  had.  Then  what  was  the  interest  of  the  pauper's 
testator?  He  had  a  right  to  continue  on  the  estate  another  year,  un- 
less six  months'  notice  to  quit  were  given  :  and  of  course  the  pauper, 
his  executor,  ]iad  tlie  same  right.  In  regard  to  an  objection  taken  in 
respect  to  the  want  of  a  probate,  the  learned  Judge  cited  a  case  (n) 
that  gave  a  decided  answer  to  that :  a  termor  dcAdsed  his  term  to  an- 
other, whom  he  made  his  executor,  and  died  ;  tlie  devisee  entered  and 
without  any  probate;  and  it  was  Jield  that  tli€  terra  was  legally  in 
the  executor  by  his  entry  and  an  execution  of  the  devise  without  any 
probate.  So  that  if  there  had  been  no  probate  of  the  will  in  this  case, 
still  the  term  was  vested  in  the  pauper,  the  executor. 

In  this  recpect  the  right  and  the  remedy  must  be  g^-eciprocal ;  as  the 
representative  capacity  of  executor  or  administrator  is  not  affected  by 
the  testator  or  intestate  having  been  in  the  situation  of  either  landlord 
or  tenant. 

But  although,  if  the  testator  die  in  the  possession  of  a  term  for  years, 
it  shall  vest  in  tlie  executor,  and  although  if  it  be  worth  nothing,  he 
cannot  waive  it.,  for  he  must  renounce  the  executorship  in  toto  or  not 
at  all :  yet  this  is  to  be  understood  only  where  the  executor  has  assets; 
for  he  may  relinquis4i  the  lease,  if  the  i)roperty  be  insufficient  to  pay 
the  rent ;  but  in  case  there  are  assets,  to  be  at  the  loss  for  some  years, 
though  not  during  the  whole  term,  it  seems  the  executor  is  bound  to 
Continue  tenant  till  the  fund  is  exhausted,  when  on  giving  notice 
(thereof)  to  the  lessor,  he  may  waive  the  possession  {U). 

So  in  the  case  of  an  infant.  Therefore,  where  an  infant  becomes 
entitled  to  the  reversion  of  an  estate  leased  from  year  to  year,  he  cannot 
eject  the  tenant  without  giving  the  same  notice  as  the  original  lessor 
luust  have  given  (c).  Also  if  a  tenant  hold  under  an  agreement  for  a 
lease  at  a  yearly  rent,  wdiereby  it  is  stipulated  that  the  agreement  shall 
continue  for  the  life  of  the  lessor,  and  that  a  clause  shall  be  inserted  in 
the  lease,  giving  the  lessor's  son  power  to  take  the  house  for  himself 
when  he  came  of  age,  the  son  must  make  his  election  in  a  reasonable 
time,  as  for  example,  a  week  or  fortnight,  after  he  comes  of  age  ;  the 
delay  of  a  year  is  unreasonable,  and  the  tenant  caimot  be  ejected  upon 
half  a  year's  notice  to  quit  served  after  such  a  delay  (r/). 

So,  where  an  ejectment  has  been  brought  on  the  demise  of  an  in. 
funt,  which  action  is  compromised,  and  the  tenant  in  possession  attorns 
to  the  defendant ;  tliough  the  infant,  on  coming  of  age,  does  not  accept 
rent  or  do  any  act  to  confirm  the  tenancy,  yet,  as  the  former  ejectment 
was  brought  at  his  suit  and  for  his  benefit,  he  shall  not  be  allowed  to 

(a)  Dy.  367.  a.  I.  (b)  Toll.  L.  of  Ex.  k  A<1m.  109.  and  the  cases  there  citeA 

(rj  2  T.   n.  1S9.  (d)  2T.  R.4:J6. 


Hecf.   l.j.  ichenin  of  Xutict  to  qiiil.  ir»7 

consider  the  tenant  a<;  a  trespasser,  uiul  hring  a  new  ejectnicifl  \vitliniii, 
giving  n«itire  to  (juit  (</). 

Tenant  from  year  to  year  also  before  a  inortgaq:e  or  p:rant  of  tlic 
reversion,  is  enlitleil  to  six  nu>ntlis'  notice  to  quit  before  the  end  of  the 
year  from  the  uiorty.ii^ee  or  i^rantee  (6). 

Thus  where  a  tenant  heltl  from  the  22d  of  November  as  a  yearly 
tenant  ;  and  a  morli;ai^ce  who  became  su«h  in  Jul;/  was  desirous  of 
oiistint;  him,  it  u  as  Voo  late  to  nivc  notice  then  for  the  tenant  to  (jnit  at 
the  end  of  the  current  year;  for  the  tenant,  at  the  time  that  the  mort- 
gagee's title  accrued,  had  as  permanent  an  uiterest  in  the  estate  till  the 
22tlof.Vot'r>;j/>rr,as  if  it  had  bwideasedto  hini!)y  deed  till  that  period  (r) 

There  is  no  distinction  in  reason  between  lu)uses  and  lands, as  to  the 
time  of  giving  notice  to  quit  ;  it  is  necessary  that  both  should  be  go- 
verned by  one  rule.  There  may  be  cases  where  the  hardship  would  be 
felt  in  determinin;;  that  the  rule  did  not  extend  to  houses  as  well  as 
lands  :  as  in  the  case  of  a  lodging-house  in  London  being  let  to  a  tenant 
at  Lady-daij  to  hold  from  year  to  year,  if  the  landlord  should  give  no- 
lice  to  quit  at  Michaelmas^  lie  would  by  that  means  deprive  the  le.-sce 
of  the  most  beneficial  part  of  the  term,  since  it  is  notorious  that  the 
w  inter  is  by  far  the  most  profitable  season  of  the  year  for  those  who  let 
lodgings.  The  notice  should  be  half  a  year  preceding  the  expiration 
of  the  year  {cl). 

'I'ithcs  in  this  respect  are  assimilated  to  land.  If,  therefore,  a  com- 
position for  tithes  be  made  by  A.  as  proprietor,  and  he  loase.thcm  to  B. 
whose  interest  is  afterwards  put  an  end  to  by  .-/.  before  any  alteration 
is  made  in  the  composition,  ./.  cannot  determine  it  without  six  months' 
uotice  (<■). 

A  notice  to  (piit  has  reference,  in  all  case?,  to  the  letting  ;  therefore, 
where  a  house  was  taken  by  the  month,  it  was  held  that  a  monlli's  no- 
tice wassuflicient  to  entitle  the  plainlill'to  recover  (7). 

Though  reasonable  notice  must  be  given  before  the  end  of  the  year  by 
landlord  or  tenant,  and  such  notice  is  generally  re([uired  to  bo  half  a 
year's,  yet  it  varies  according  to  the  custom  of  diiierent  countries  (tf). 

Therefore,  w  here  the  arable  part  of  a  farm  was  to  be  entered  on,  and 
•  luitted  on  the  13th  of  Februnrif,  it  wa';  c-onsidered  to  be  no  more  than 
what  the  custom  of  most  countries  woukl  have  directed  w  ithont  any  spe- 
cial words,  on  a  taking  from  Lady-dot/  to  Lady-da// ;  that  being  the  time 
when  the  land  is  to  l)e  prepared  for  /.c;j/-corn  ;  and  as  the  tenant  out- 
jjoinghas  the  benefit  of  the  way-going  crop,  any  inconvenience  to  him 
is  obviated  ;  whereas  great  mischief  might  happen  to  landlords  if  coni- 
pclleil  to  give  notice  so  early  as  Jugust,  as  it  would  enable  the  tenant  to 
hajrass  the  land  (//). 

•  ...  nf:>p  R  sj"  ;  t.  n.  .iro  't)  \h^|^.^»^.  H)  i  t  n.  i« 

-•     I    r.rl    i.    H.J.         -  <'/)   I   K'P    R-  »*•  'C     •"»  Bur.   16(1-'. 

;4.  2BJ.   R    IKI. 


168  Of  Tcnanls  from  Year  to  Year,      [Ciiap.  VII. 

The  preceding  case,  however,  is  said  to  have  been  much  questioned 
if  not  over-ruled,  by  Lord  Kcnijcn,  at  Nisi  Prius,  in  the  case  of  Doe  on 
the  demise  of  Lord  Grai/  dc  ll'ilfon  at  Stafford  Suuimer  Jssizes,  1788  ; 
Avhich  was  an  ejectment  brought  by  a  landlord  on  a  notice  to  quit.  The 
defendant  held  a  farm,  as  to  the  arable  lands  from  Candlemas  ;  as  to  the 
buildings  and  pastures  from  Mai/-day  ;  the  rent  payable  at  Michaelmas 
and  Ladij-day.  The  notice  to  quit  was  given  six  months  before  May- 
daij,  but  not  six  months  before  Candlemas.  His  Lordship  nonsuited 
the  plaintiif,  and  is  stated  to  have  said  that  the  notice  must  be  given 
half  a  year  before  Candlemas  {a).  But  it  does  not  appear  whether 
the  notice  to  cjuit  was  given  half  a  year  before  Ladi/-day  or  not,  so  as  to 
bring  it  within  the  rule  laid  down  in  Doe  v.  Snondon.  Sluare  ?  whe- 
ther the  case  of  Doe  v.  Snowdon,  [2  Bl.  R.  122-k  ante,]  did  not  turn  up- 
on the  construction  of  a  notice  to  quit  given  to  a  tenant  from  year  to 
year,  which  not  being  upon  a  contract  under  seal,  might  be  governed 
by  the  custom  of  the  count r)^  in  relation  to  which  the  parties  might  be 
supposed  to  have  contracted  ;  for  «  hich  purpose  the  entry  on  the  arable 
land  was  not  considered  as  a  general  taking  possession  of  it  at  that  pe,- 
riod,  l)ut  only^  for  a  special  purpose,  viz.  to  plough  and  prepare  for  the 
Lent-corn  {b). 

Under  an  agreement  by  a  tenant  of  a  farm  to  enter  on  the  tillage  land 
at  Candlemas,  and  on  the  house  and  all  other  the  premises  at  Lady-day 
following,  and  that  when  he  left  the  farm  he  should  quit  the  same  ac- 
cording to  the  times  of  entry  as  aforesaid,  and  the  rent  was  reserved 
half  yearly  at  Michaelmas  and  Lady-day  ;  held  that  a  notice  to  quit  de- 
livered half  a  year  before  Lady-day,  but  less  than  half  a  year  before 
Candlemas  was  good,  the  taking  being  in  substance  from  Lady-day  with 
a  privilege  for  the  incoming  tenant  to  enter  on  the  arable  land  at  Can- 
dlemas, for  the  sake  of  ploughing,  Src.  (c). 

Under  an  agreement  of  demise  dated  in  January  of  a  dwelling  house 
and  other  buildings  for  the  purpose  of  carrying  on  a  manufacture,  to- 
gether with  certain  meadoAv,  pasture,  and  bleaching  grounds,  water- 
courses, e^'c  for  a  term  of  thirty-five  years  to  commence,  as  to  the 
meadow  ground  from  the  2.5th  of  December  last,  as  to  the  pasture  fi»om 
the  25th  of  March  next,  and  as  to  the  housing  mills  and  all  the  rest  of 
the  premises  from  the  1st  of  May,  reserving  the  first  half  year's  rent  on 
the  Day  of  Pentecost,  and  the  other  half  year's  rent  at  Martinmas  ;  held 
that  the  substantial  subject  of  demise  being  the  house  and  buildings 
for  the  purpose  of  the  manufacture  which  were  to  be  entered  on  the 
1st  of  May,  that  Mas  the  substantial  time  of  entry  to  which  a  notice 
to  quit  ought  to  refer,  and  not  to  the  2.5th  of  December  when  the  in- 
coming tenant  had  liberty  of  entering  on  the  meadow,  which  was 
merely  auxiliary  to  the  other  and  principal  subject  of  demise.  Notice 
foquit  served  one  of  two  tenants  on  the  premises,  who  held  under  a 

^a;"  2  East's  H.  ;)liJ.  ''jWlii-'.  •!?3.  -  (c)  6  Efcet.   120. 


'^Pfl.   I.]  nfini  ill  of   .^i>/i<(  In  f/uit.  l(j'0 

joint  ilcmipc,  is  eviilcncc  tliai  tlu-  imtiif  n'arlicd  llio  other  who  li\(il 
t  Ij-tu  ht'r«!  [(i). 

So,  l)y  spitial  custom,  Ihrrr.  moiitlis'  nolii  r,  i>r  tnrlvc  nionllis',  will 
\h:  I  lie  |M'»|»(  r  notice  (/»). 

As  l»y  Hir.  ciiNtoiii  of  l/milon,  uIhtc  a  tonant  iiiuhr  the  yearly  rent 
of  l4)i-.  is  eiilitlol  (o  a  (juurtcr's  notice  to  (jiiit  ;  Imt  a  tnunt  iIimvc  Ihal 
nnt  must  have  lialf  a  year's;  notice  (< ). 

The  custom  of  the  country  is  also  atlmissilih*  evidence  to  explain  the 
niliirc  of  the  holdini^,  as  whether  a  i;eneral  hoKlioj;  from  Mithnclmtu 
means  old  or  n«u  Miditnlmas  {d). 

DiHiciillics  frcfjuently  arise  in  respect  to  a<^cortainini:f  the  commence- 
ment of  the  tern>,  and  cases  occur  in  the  l)ooks  wherein  rcaj;«)naltlc  no- 
liic  lias  l)een  hel»l  to  l>e  suthcient;  whereas,   in  oilier  instances  it  has 
'( en  decided  that  the  lialf  year's  notice  that  the  law  requires  is  indis- 
jtcnsahle. 

Thus,  uhcrctlie  lessor  of  the  j)laintiff  in  an  ejectment  co:i!«l  not 
prove  the  time  wiien  the  term  commenced,  and  the  tenant  provetl  it  to 
l)e  ditTerent  from  the  time  to  rjiiit  mentioned  in  the  notice,  the  plaintiff 
was  n«)n.suited  (r). 

IJiit  not  wit  list  and  injj,  where  the  notice  was  given  on  the  30lh  oiSrp- 

iiiOrr,  being  the  day  after  Mir/utelmns-ilni/j  to  quit  at  J.adi/'dm/foUow- 

iug,  Mr.  J.  Ilciith  ruled  the  notice  snlilcient :  this  uas  probably  on  tho 

principle  of  its  beiiii;;  reasonable  notice  :  and  what  is  reasonable  is  jnat- 

tcr  of  circunjfitance  ( /"). 

So,  it  is  said  to  have  bceji  ruled  at  Nisi  Priiis,  tliat  where  notice  to 
quit  has  been  served  on  the  tenant,  and  the  landloni  l)eing  ignorant  of 
tluHime  when  the  tenancy  commenced,  has  given  the  notice  toc^uit  at 
the  wrong  time,  that  is,  not  at  the  end  of  the  year,  that  the  tenant 
AS  hen  the  notice  is  served  ought  to  inform  the  landlord  of  his  error  ai.-l 
mention  tiie  true  lime  (^'). 

The  rule  however  is  otherwise  ;  for  if  notice  to  quit  ai.  Midsummer  be 
given  to  a  tenant  holding  from  Mic/iachiias,  he  may  insist  on  the  insuf- 
ficiency of  the  notice  at  the  trial  of  an  ejectment  though  he  did  not 
make  any  objection  at  the  time  that  it  was  serveil  ;  but  said  "  I  i>a\ 
rent  enoiigh  already,  and  it  is  hard  to  use  me  thus ;"  for  the  e.\prtsji«<ii 
is  merely  that  of  an  angry  man  (/<). 

Hut  a  notice  to  quit  at  Mulnu Imas  served  personally  on  the  tenant, 
>  •  who  made  no  objection  at  the  time,  \s  prima  facie  evidence  from  wlitn^o 
a  jury  may  find  tiiat  the  tenancy  commenced  al  that  perioil  (/). 

So  if  half  a  year's  notice  requires  a  tenant  to  quit  al  the  sini*-  limo 
•  of  the  year  at  w  hich  he  has  usually  paid  rent,  and  he  does  iiot,  on  r«'- 
ceivinq;  it,  object  to  the  time,  this  is  suffjcient  evidence  that  the  year  of 
his  tin  inry  determines  at  the  lime  mentioned  in  the  nf)tite  (.v). 

*  *■* 

(»)  1  i".  n.  1.1  '/•'  Ks|>.  \.  I'.  t«o.  Ml.  n.  SIS.  Kh>.  N-  »*■  ««<• 


T70  Of  Tenants  from    Year  to   Year,       [Chap.  Vll. 

But  a  notice  to  quit  if  not  served  personally  upon  the  tenant  in 
pv)i5cs5ion,  is  no  evidence  to  prove  the  commencement  of  the  te- 
nancy {n). 

A  notice  w  as  given  on  the  22d  of  March,  by  a  landlord  to  his  tenant 
to  quit  at  the  ejtpiration  of  the  current  year.  A  declaration  in  eject- 
mc  nt,  l.iyini^  the  demise  on  the  first  of  November,  Avas  on  the  ICth  of 
Jcmuari/  following  served  upon  the  tenant,  who  at  the  time  made  no 
ol)jcction  to  the  notice  to  quit,  but  said  he  should  go  out  as  soon  as  he 
could  fit  himself.  This  uasheld  to  ht prima  fade  evidence,  that  the 
tenancy  commenced  at  Michaelmas,  and  was  determined  before  tlie 
day  of  the  demise  {b) . 

"»Vhcre  a  house  and  land  are  let  together,  to  be  entered  upon  at  dif- 
ferent limes,  and  it  does  not  appear  from  the  terms  of  the  demise  from 
what  time  the  whole  is  to  be  taken  as  being  let  together  ;  it  is  a  ques- 
tion oX  fact  for  the  jury  which  is  the  principal,  and  which  the  acces- 
sorial subjjct  of  demise,  in  order  that  the  judge  may  decide  whether  a 
Holice  to  quit  the  whole  was  given  in  time  (r). 

In  an  ejectment  cause,  a  point  was  raised,  whether  a  notice  to  quit 
was  sulficijut  ?  The  taking  was  proved  to  be  from  old  Michaelmas  to  . 
old  ;\Iicliaclmas,  and  the  notice  was  general  to  quit  at  Michaelmas. 
Il-ath  J.  on  an  objection  to  the  notice  as  not  being  sufhciently  certain, 
cited  a  MS.  case  from  his  note-book,  in  which  a  similar  notice  was 
kcld  good,  and  overruled  the  objection  {a). 

A  lease  of  lands  by  deed  since  the  new  stile,  to  hold  from  the  feast 
of  St.  Michael  nujst  be  taken  to  mean  from  new  Michaelmas,  and  can- 
not be  shewn  by  extrinsic  evidence  to  refer  to  aliolding  fromoW  Mich- 
adinas;  and  a  notice  to  quit  at  old  Michaelmas,  though  given  half  a 
year  before  new  Michaelmas,  is  bad  (c). 

It  has  been  holdcn,  that  a  notice  to  quit  at  Ladjj-dai/  w<is  prima  facie 
c\  idcnce  of  a  holding  from  Lady-daij  to  Lady-day,  till  the  contrary 
were  shewn  (/). 

So,  a  notice  delivered  to  a  tenant  at  Michaelmas,  1795,  to  quit  "  at 
Lady-day  which  will  be  in  the  year  ITOo,"  was  holdento  be  a  good  no- 
tice toquit  at  Lady-day,  1790;  for  the  intention  was  clear,  and  1795 
^liail  1)e  rejected  as  an  impossible  year  {g). 

In. leed  where  the  notice  was  to  "quit  possession  of  the  rooms  or 
n  prill  )ncnt>:  u  Iiich  you  now  hold  of  me,  on  the  2.5Lh  of  March,  or  the 
^'-ifi  day  of  .//)ril  next  ensuing,"  Lord  Kenyan  held  tliat  it  was  sufficient,  . 
it'tire  to  the  tenant  to  quit  if  he  received  it  six  mouths  before  the  end 
tf  tlic  tcniTicy  ;  the  notice  here  was  intended  to  meet  an  holding  com- 
lUfucing  either  at  old  or  new  Lady-day,  and  at  whichsoever  day  it  ac-, 
ttiii'ly  couiuieiiced,the  notice  was  calculated  to  meet  it,  being  given  on 
w  w  Michaelmas-day,  and  the  demise  laid  a'fter  the  8th  of  April  {h). 

(1'  or^iTp'.  T^8  (t)  2  Camp;;.  559.  (c)   11   Kast.4%. 

(.r  GI'vir  <mn.  A  '1.  1800.  T.'i  .M.  S.  8.  (O  1 1  East.  312. 

'.'  >  '  »    ■  '••■.  (g}7  T.   K   r.X  (h;  4  Esp.  R.  S. 


Sect  1.]  nhcrdn  of  Nulicc  to  quit.  1 ;  \ 

8n,  uherc  the  premises  in  question  wrrc  part  or;i(onM<Icrablccst;ite 
■which  the  plaintill  had  demised,  ami  thi-  di  iVnJ.anl  nut  having  take» 
them  of  him,  l>iit  ol  his  tciinrit,  the  time  at  whic-li  the  tenancy  roni- 
nienced  was  unknown  to  the  plaiiitiiK,  who  t;:ivc  tlie  followini^  notice  to 
quit  : 

"  William  Kutlcr, 
'*  Take  notice,  that  1  hereby  rtiimu  smi  in  cpiil  and  deli\rr  up  to 
iiie  the  possession  (»1  the  house  and  premises  yon  hold  of  me,  .■•ituatc  in 
Rose  (utd  Cronn  Courty  Moorjiilds^  in  liie  parish  of  .SV.  I.ronard,  Shorr- 
iUtrli,  in  tlie  roimly  of  iU/( /<//<, vr.c,  at  the  emi  and  Pxj)iration  of  the  cur- 
rent year  of  your  tenancy  thereof,  which  , shall  expire  nf  xt  after  the  etui 
of  one  half  year  from  the  date  hereof.  DaVed  this  2l)th  day  of  June, 
J  790.  J.  Phillijny 

Lord  Kent/on  Iield  this  notice  to  I)C  snflicient  to  entitle  IhcplaintiiTto 
recover  possession,  notw  ithslandin:;-  that  no  particular  day  was  hk n- 
lioned  :  and  the  plaintidhad  a  verdict  (n). 

Altiiougli  the  tenant  may  ir)=ist  on  the  insufHciency  of  the  notice  ai 
the  trial  of  an  ejectment,  and  if  he  piove  anotlier  commencement  of  his 
term  than  that  which  it  mentions,  may  defeat  the  plaint  id"  of  his  right 
to  recover,  yet  if  he  disputes  the  time  when  Ids  tenancy  commenced, 
that  the  notice  to  quit  does  not  correspond  with  it,  it  is  incuml>en(  on 
him  to  sliew  the  true  commencement  of  las  tenancy  (h) ;  for  it  is  snfli- 
cient for  the  plaintifl'  to  prove  his  having  givtn  six  months'  [half  a 
year's]  notice  to  (juit,  and  that  the  ejectment  has  been  brought  after 
that  time  was  expired  (r). 

So,  wiu  re  a  tenant  being  applied  to  respecting  the  commencement 
of  his  holding,  informs  the  party  that  it  l)eginson  a  certain  day,  and  no- 
tice to  quit  on  that  tlay  is  <riven  at  a  subsequent  time,  tlie  tenant  shall 
be  bound  by  the  information  which  he  so  gave,  and  not  be  per:iiitte<l 
to  shew  that  in  fact  it  began  at  another  period;  and  in  such  case,  it 
makes  no  dillerencc,  whether  the  information  so  c'ven  proceeded  from 
mistake  or  design,  as  it  ha«  equally  tiie  mischief  of  leading  the  laiidln).] 
into  enor,  and  inducing  him  to  proceed  to  recover  the  posse.-sion  of  the 
term,  tlic  commencement  of  which  lie  luid  taken  fioni  the  defendajit's 
own  information  (r/). 

Demise  from  J.  to  B.  for  twenty-one  years,  if  both  should  so  long- 
live  ;  but  if  either  sliould  die  before  the  end  of  the  saiil  term,  then  the 
heirs,  executors,  Wt.  of  the  i)erson  so  dying  should  give  tuelvf-  nututhi,' 
notice  to  quit,  <<iC  Held  that  the  lease  couid  only  be  determined  l,y 
twelve  months'  notice  given  "  by  the  representativjes  of  the  party  dyiiiii; 
before  the  end  of  the  term  ;"  and  ct)nsequently  that  such  notice  given 
by  the  lessor  to  the  representatives  of  the  lessee  (uho  died  deriiiL-  tli'^ 
term)  did  not  determine  it  (p). 

If  premises  are  taken  "  for  twelve  njonths'  certain  and  six  months' 

(a)  Esp.   R.  599.  'if     H.  3i0.  ■       ^'        ''    " 

(rf)  2  Kip.  H.  61?.  r^  \Ville«.  4 


172  Of  Tenants  from   Year  to   Fear,      [Cliap.  VII. 

notice  to  quit  afterwards,"  the  tenancy  may  be  delerniincd  by  a  six 
montlis'  notice  to  quit  "fxpiring  at  the  end  of  the  first  year  (</)• 

Wiiere  a  jiovver  is  given  to  a  party  to  determine  a  lease  on  giving  a 
notice  in  nriii/n;,  lie  cannot  determine  it  by  giving  sl parol  notice  (i'^).  ' 
A  parol  notice,  it  should  seem,  would  be  suflicient  under  a  parol  de- 
mise (f)  ;  though  in  other  cases  it  should  be  in  writing  (r/). 

Altiiough  a  lease  of  tithes  cannot  be  without  deed,  yet  a  parol  agreer 
raenl  for  retaining  tithes  must  be  determined  by  a  notice,  with  analogy 
to  the  notice  given  in  a  holding  of  land  (c). 

A\'here  tltree  are  three-joint-tructees  of  an  estate,  notice  to  quit  or 
discontinue  tiic  possession  given  l)y  two  is  bad,  even  though  given  in 
the  name  of  tlie  third,  and  the  third  trustee  afterwards  adopts  it  and 
joins  in  the  demise  in  ejectment  (/). 

But  where  there  are  two  tenants  of  premises  held  in  comnron,  notice 
to  one  is  sufficient  (^sj). 

Such  notice  should  Ijc  clear  and  certain  in  its  terms,  and  not  ambigu- 
ous or  optional. 

A  fana  was  leased  for  twenty-one  years  at  a  rent  of  ]80/.  per  an- 
num, consisting,  as  described  in  the  lease,  of  the  Town  Barton,  and  its 
several  parcels  des-criljcd  by  name,  at  the  rent  of  83/. ;  other  closes 
named,  at  other  rents,  and  the  Shippen  Barton  and  its  several  parcels 
■described  by  name  at  another  rent ;  with  a  power  reserved  to  either 
party  to  determine  the  lease  at  the  end  of  fourteen  years,  on  givina:  two 
years'  previous  notice.  It  was  held  that  a  notice  by  the  landlord  to  his 
tenant  to  quit  "  Town  Barton,  <S:c."  agreeably  to  the  terms  of  the  co- 
venant between  them  at  the  end  of  the  fourteenth  year  of  the  term, 
given  in  due  tim.e,  was  sufficient;  for  the  Town  B art o 71  meant  Town 
Barton  rum  sociis  ; — otherwise,  as  there  was  no  power  to  determine  the 
lea.'^c  as  to  part  only,  the  notice  could  have  no  operation  at  all  [h). 

Where  a  house,  lands,  and  tithes  are  held  under  a  parol  demise  at  a 
joint  rent,  a  no!  ice  to  quit  "  the  house  lands  and  premises  with  the  ap- 
purtenances," includes  the  tithes,  and  is  suihcient  to  \Vdi  an  end  to  the 
tenancy  (/). 

Jfa  notice  to  (juit  I)e  in  these  words,  "  I  desire  you  to  quit,  or  else 
that  you  agree  to  pay  double  rent,"  the  tenant  having  an  option,  the 
notice  would  not  be  sullicient  (A). 

But  whore  notice  in  v.riting  was  served  on  a  tenant  and  was  in  the 
follow  ing  words,  "  I  desire  you  to  q;;it  i>osscssion  on  Lad/j-da//  next,  or 
I  shall  insist  upon  double  rent;"  the  Court  held  it  to  be  sufficiently 
pr^silive,  the  latter  \\ords  were  added  only  by  way  of  threat  of  the  con- 
sequcuceof  holding  over  the  possession  (/). 

(n)  2  Carni)l(    573.  (t)  Willes,  43.                        (c)  3  Bur.   ^r,09.  Bl.  R.  533. 

(«)  Vitle  5  Ksjj.  I»5.  qua  el.  (d)  }  Bo?,  k  Pul.  46a.  2  Rro.  C.  C.  161 

ff)  5  K;p.    U...  (g)  5  Ksp.  196.                                (A)  14   Ea-t.  Jli. 

(■}  3  C^tuj).  71  (k)  Doug.  IT*.                                        a)  Ibid. 


Sect.  I.]  nlunin  of  yotirc  to  (juil.  173 

It  is  not  necessary  that  a  notice  to  (|iiil  sIiouUl  1)C  ilircctcd  to  the  te- 
nant in  possession,  if  proved  to  be  tlclivered  to  him  at  the  proper  time. 

Tliereforc,  where  notice  was  given  on  the  i^Oth  of  StptcmOcr,  and 
was  in  the  following  word?: 

"  Take  notice  tliat  you  quit  possession  of  the  rooms  and  apart- 
ments which  you  now  hold  of  ine,  on  the  2.')th  day  of  Mfirchov  the 
8th  day  of  April  next  ensuin;:;. 

(Si.ijncd)  ''.A.  Mutthcnsoji.'** 

This  notice  was  not  directed  to  the  defcmlant ;  l)ut  it  was  proved  to 
have  l)een  served  on  him  on  the  29th  oi  Sc/jtcmhrr. 

Lord  Kent/on  said,  that  tlic  notice  to  quit  was,  in  point  of  lonu, 
good  ;  and  that  it  was  sufficient  to  shew  that  the  deftiulaiit  was  the 
tenant  to  tlie  lessor  of  the  plaintiir,  whicli  was  necessary  in  all  cases  of 
ejectment  l)y  a  landlord  against  his  tenant,  and  had  been  done  here  ; 
and  that  the  service  was  on  him  in  that  character  (dj. 

The  delivery  of  the  notice  to  quit  to  the  servant  of  tlic  tenant  at  his 
dwellin<j-house,  to  whom  the  nature  of  it  was  cxplainetl,  though  such 
dwelling-house  was  not  situated  on  the  premises  and  it  did  not  api>c:ir 
to  have  co)ne  to  the  tenant's  hands,  is  strong  presumptive  evidence 
that  it  reached  him,  which  may  be  rebutted  by  the  evidence  of  the 
servant  (0). 

But  the  mere  leaving  of  a  notice  to  quit  at  the  tenant's  house,  without 
further  proof  of  its  being  delivered  to  a  servant,  and  explained,  or  that 
it  came  to  the  tenant's  hands  is  not  sullicientto  support  an  ejectment  (r). 

If  a  landlord  receive  rent  due,  after  the  expiration  of  a  notice  to  quit, 
it  is  a  waiver  of  that  notice.  Hut  if  the  money  had  not  been  received 
as  rent,  but  as  a  satisfaction  for  the  injury  done  by  the  tenant  in  con- 
tinuing on  his  late  landlord's  premises  as  a  trespasser,  then  the  late 
landlord  might  have  recovered  in  ejectment  ((/). 

A  landlord  of  premises  about  to  sell  them,  gave  liis  tenant  notice  to 

•  quit  on  the  lith  oi October,  1800,  but  promised  not  to  turn  him  out 
unless  they  were  sold,  and  not  being  sold  till  fcbruari/,  1^07,  the  te- 
nant refused  on  demand  to  deliver  up  possession,  and  on  ejectment 
]>rought,  it  was  held  that  the  promise  which  was  performed  was  no 

•  waiver  of  the  notice,  nor  operated  as  a  license  to  be  on  the  premises, 
otherwise  than  subject  to  the  landlord's  ri^ht  of  acting  on  such  notice 

^  if  necessary,  and  therefore  that  the  tenant  not  having  delivered  up  pos- 
session on  dcnianil  after  a  sale,  was  a  trespasser  from  the  expiration  of 

.  the  notice  to  quit  (^). 

Though  notice  to  quit  is  in  general  waived  by  the  receipt  of  rent  due 
subsequent  to  such  notice,  yet  the  mere  acceptance  of  rent  by  a  land- 
Iprd  subsequent  to  the  time  when  the  tenant  ought  to  have  quitted  ac- 
cording to  the  notice  given  him  lor  that  purpose  is  not  itself  a  waiver, 

(a)  i  Esp.  R.  5.  ft)  4  T.  R    16«.  (0  S  Eip.  153. 

i    flT.R   2lC!B!   n   r'l.  'c)  lOEiBt.  11. 

^1 


174  Of  Tenants  from   Year  to   Year,     L^^hap.  Yll. 

on  the  part  of  the  landlord,  of  siicli  notice;  but  matter  of  evidence 
only  to  l)c  left  to  the  jury,  under  the  circumstances  of  the  case  :  fur 
the  landlord  might  possibly  have  accepted  the  rent  under  terms  or 
made  an  cxjircss  declaration  that  he  did  not  mean  to  waive  Ihe  notice, 
and  that  notwithstanding  his  acceptance  or  receipt  of  the  rent,  heshould 
stil!  insist  rtpon  the  possession  ;  or  fraud  or  contrivance  miqht  have  been 
practised  on  the  part  of  the  tenant  in  paying  it. — The  question  there- 
fore, in  such  cases,  is  in  rpio  anhno  the  rent  was  received,  and  what  the 
real  intention  of  both  parties  was  (jt). 

"Where  rent  is  usually  paid  at  a  banker's,  if  the  banker,  without  any 
special  authority,  receive  rent  accruing  after  the  expiration  of  a  no- 
tice to  quit,  the  notice  is  not  thereby  waived  (/)). 

Where  a  landlord  gave  notice  to  quit  different  parts  of  a  farm  at 
dili'crent  times,  which  the  tenant  neglected  to  do  in  part,  in  consequence 
of  which  the  landlord  commenced  an  ejectment;  and  before  the  last 
period  n.cntioiied  in  the  notice  was  expired,  the  landlord,  api  lehtnd- 
ina;  that  the  witness  by  whom  he  was  to  prove  the  notice  Mould  die, 
gave  another  notice  to  quit  at  the  respective  times  in  the  following 
year,  but  continued  to  proceed  with  his  ejectment,  it  was  held  that  tlie 
second  notice  was  not  a  naiver  of  the  first  (r ). 

So,  if  a  landlord  gives  notice  to  his  tenant  to  quit  at  the  expiration  of 
the  lease,  and  the  tenant  hold  over,  the  landlord  is  entitled  to  double 
rent ;  and  a  second  notice  delivered  to  the  tenant  after  the  expiration 
of  such  notice  "  to  quit  on  a  subsequent  day  or  to  pay  double  rent,""  is 
no  waiver  of  the  first  notice,  or  of  the  double  rent  which  lias  accrued  ' 
under  it  (W).  [The  circumstance  of  the  double  rent  having  accrued 
under  the  iirst  notice,  tliffers  in  this  case  from  that  cited  ante  from 
Dovg.  176,  where  an  option  was  clearly  given.]  (e). 

Where  a  second  notice  was  given  to  a  tenant  to  quit  at  Michaelmas, 
1811,  it  was  held  a  waiver  as  to  him  of  a  former  notice  given  to  the 
original  lessee  (from  whom  he  claimed  by  assignment)  to  quit  at 
Michaelmas  1810  (/). 

Where  one  in  remahider,  affer  the  expiration  of  an  estate  for  life, 
gave  notice  to  the  tenant  to  quit  on  a  certain  day,  and  afterwards 
accepted  of  half  a  year's  rent ;  such  acceptance  being  only  evidence  of 
holding  from  year  to  year,  is  rebutted  by  the  previous  notice  to  quit, 
and  therefore  the  notice  remains  good  (§•). 

But  when  three  months'  notice  was  given  where  the  rent  was  reserved 
quarterly,  and  the  landlord  expressed  neither  his  assent  nor  dissent  to 
admit  it,  and  took  the  rent  up  to  tlie  time  when  his  tenant  quitted  ;  it 
was  con.-^trued  to  be  such  an  accpiiescence  as  amounted  to  presumptive 
c\  Idence  that  the  parties  intended  to  dispense  with  the  notice,  and  was 
therefore  deemed  a  waiver  of  it  (/(). 

(n)  Corp.SiS.  (i)  2C:jnripb.3S#.  (<•)  2  Ea.'ifB  H.  237.  (<i)  3  Campb.  117. 

(«)  1  T.K.  53.  (f)  IB  Kast  53^  (g)  Ibid.  161.  (A)  Kbj..  H.  8(56. 


Sett.   I.j  nlnrdii  of    .\i)lin    fo  qfii!.  IT."* 

So,  if  at  lilt;  cikI  dT  tlie  year  (where  tliere  has  Mccn  a  tenancy  fr<nn 
year  to  year)  the  huidlord  accepts  another  as  his  tenant,  \\ilh()ut  aiiy 
surrender  in  u riling,  such  acceptance  shall  l)C  a  dis^Hinsatiuii  of  tlic 
notice  to  (]nit  (a). 

Notice  1«)  quit,  however,  is  not  necessary  in  every  case.  Tluis  wlirn 
a  lease  is  det(;rniinal)le  on  a  certain  event,  or  at  a  particular  period,  no 
notice  to  quit  is  necessary,  because  both  parties  arc  equally  apprized 
of  the  dctcrnn'nation  of  the  fenn  (A). 

So,  if  the  tiMjaiit  have  utlorned  to  some  other  person,  or  done  some 
ollur  actdisclaimini;  to  hold  as  tenant  to  the  landlord,  in  that  case  no 
notice  is  necessary  (r ).  Indeed  if  a  tenant  put  his  landlord  at  de- 
fiance, his  landlord  may  consider  him  either  as  his  tenant  or  a  trespasser, 
and  iii  the  latter  case  nccil  not  give  him  a  notice  to  quit  before  he 
brings  his  ejectment  {d). 

But  a  refusal  to  pay  rent  to  a  devisee  in  a  \\  ill  \\  liicli  ^vas  contested 
is  not  sucli  a  disavowal  of  the  title  as  to  empower  such  de\"isee  to  main- 
tain an  ejectment  without  givini;  a  previous  notice  {c). 

A  mortgagee  may  recover  posscasion  against  the  mortgagor,  or  a 
tenant  under  a  lease  from  the  mortgagor  posterior  to  tlu;  mortgage, 
without  notice  to  quit;  for  when  the  mortgagor  is  left  in  possession, 
the  true  inference  to  be  drawn  is  an  agreement  that  he  shall  possess  the 
premises  at  will  in  tlic  strictest  sense  and  tiiercfore  no  notice  is  ever 
gi^en  him  to  quit  (/). 

So,  a  mortgagee  need  not  give  notice  to  a  tenant  to  quit  before 
bringing  his  ejectment,  if  he  means  only  to  get  into  the  receipt  of  the 
rents  and  profits  of  the  estate,  though  the  mortgage  be  uiade  subse- 
quent to  the  tenant's  lease.  But  in  such  case  he  shall  not  be  suffered 
to  turn  the  tenant  out  of  possession  by  the  cx^aution.  In  tlic  present 
case  the  lease  was  only  from  year  to  year,  and  m  ith  respect  to  the  last 
year,  might  be  considered  as  a  lease  subsequent  to  the  m<trtgagc;  but 
the  Court  held  that  it  would  have  been  the  same  if  the  kase  w  ere  for 
a  long  term  (g-). 

Wherever  the  lessee  holds  under  a  void  demise,  no  notice  is  neces- 
sary ;  as  in  the  case  just  mentioned  of  a  lease  by  a  mortgagor  after  the 
mortgage  (A). 

So  (/■),  where  an  ejectment  for  lands  in  Sitrn/,  the  ra<:e  was  that 
Elizabeth  Conipton  being  entitled  to  a  copyliold  of  inheritance  hold  of 
the  manor  of  AVrj/ii/i^^o/i,  was  admitted  to  it  in  1707;  in  1780  Mr.  C. 
her  husband  granted  a  lease  to  .If.  for  forty  years  (uiidrr  whom  the 
defendant  claimed)  without  the  consent  or  the  joining  of  his  wile  and 
tJicrefore  contrary  to  stat.  32  //.  8.  r.  2f\.  s.  3.  In  1782  Mrs.  ('.  died, 
leaviug  her  husband  and  anonly  daughter  (now  the  lessor  of  the  plaiutiti ) 

(a'  2  F.^p.  n   fiOi.  (4)  1  T.  K.  il,  162.  ('•)  Hull.  N.  P  00.    K»p  N-  T.  AM- 

.J)  Hpakc's  n.  l'.»7.  (r    Ibnl.  (/)  Doug.  22-  ^x'  ""'••  ^'- "'• '^ 

'K    JT   11  '}■,.  r.*\'   S   P.i>;\  iO  IUiJ46l-7.T   R  »5. 


176  Of  Tenants  from  Y car  io   Year,  Si' c.     [Chap.  VI L 

her  lieir  at  law :  ]\Ir  C.  received  the  rent  till  the  time  of  his  death  in 
irsS,  and^Irs.  J.  the  lessor  of  the  plaintiff,  also  received  it  after  his 
death,  as  reserved  by  the  lease,  till  ir89  ;  when  on  discovery  that 
the  lease  a\  as  void  under  stat.  32  //.  8.  and  also  not  warranted  by  the 
custom  of  the  manor,  the  present  ejectment  was  brought  without  giv- 
ino;  notice  to  quit.  For  the  defendant  it  was  insisted  that  the  lease  was 
good,  or  at  most  only  voidable,  and  confirmed  by  acceptance  of 
rent  by  ?tlrs.  J.  the  plaintiff;  but  that  even  if  she  had  not  confirmed 
tie  lease,  she  had  made  the  holding  a  tenancy  from  year  to  year,  and 
therefore  should  have  given  notice  to  quit ;  but  both  points  were  over- 
ruled by  Mr.  J.  Gould,  who  tried  the  causes,  and  the  plaintiff  recov- 
ered (n). 

The  preceding  case  at  Nisi  Prius,  however,  was  objected  to  by 
Lord  Kcnijo7\,  ^vho  o])served  that  it  passed  perhaps  without  much 
consideration,  and  cannot  be  put  in  the  balance  against  all  the  other 
decisions  (b). 

It  may  again  be  observed,  that  where  the  estate  or  lease  is  ipso  facto 
void  by  the  condition  or  limitation,  no  acceptance  of  the  rent  after  can 
make  it  to  have  a  continuance  ;  otherwise  it  is  of  an  estate  or  lease 
voidable  by  entry  (r)  :  and  this  distinction  is,  because  the  acceptance 
of  rent  in  the  one  case  cannot  make  a  new  lease,  and  the  old  one  was 
determined:  but  the  acceptance  of  the  rent  in  the  other,  is  a  sufficient 
declaration  that  it  is  the  lessor's  will  to  continue  the  lease,  for  he  is  not 
entitled  to  the  rent  but  by  the  lease  {d). 

It  need  scarcely  be  again  observed  that  where  the  relation  of  land- 
lord and  tenant  does  not  subsist,  notice  to  quit  is  out  of  the  question. 

Thus  the  receipt  from  the  cestvique  of  a  quit  rent  reserved  on  the 
grant  of  a  copyhold  dqg^  not  constitute  a  tenancy  from  year  to  year,  so 
as  to  entitle  his  widow  to  notice  to  quit ;  the  rent  not  being  received  as 
between  landlord  and  tenant,  l)ut  attributable  to  another  considera- 
tion :  for  as  to  the  question  of  tenancy  from  year  to  year,  the  payment 
of  rent  cannot  Ije  evidence  of  a  holding  from  year  to  year,  if,  as  in  the 
case  of  a  conventionary  rent  like  this,  it  be  not  a  payment  of  rent  as 
between  landlord  and  tenant  {c). 

In  the  case  of  3Hldmaij  v.  Shir  let/,  Dorchester  Summer  Assises,  1806, 
where  the  lessor  of  the  plaintiff  claimed  thirty  acres  of  leasehold,  on  a 
lease  settled  on  liim  long  before  extinct,  on  which  a  rent  of  135.  M.  was 
reserved,  it  appeared  that  after  the  lease  had  runout,  the  steward  not 
knowing  that,  had  continued  regularly  to  receive  the  13^.  M.  on  the 
day  on  which  it  was  reserved  by  the  lease ;  wherefore  it  -was  objected 
that  this  payment  of  rent  created  a  tenancy  from  year  to  year,  and  that 
there  ought  to  have  been  a  notice  to  quit.  But,  however,  Thompso7i  B. 
held  that  it  was  not  necessary,  that  no  contract  as  of  a  tenancy  from 
year  to  year  could  be  presumed,  that  the  payment  was  made  alio  intuitu, 

Ca)  Un\)Z  53.  n.  [)7J  5.1.  n  f6)  7  T.  U.  ?.5.  (c)  Co.  I,il   215.     WiUe?.  ir,9. 

'd)  Co.  JM  n   1.  (c>  3  Kan's  H.  :>(•'> 


Sect.  II.]         Of  Tenants  for  a  A.s.s  7V////,  <SV.  17  7 

ami  tliat  the  case  fell  within  the  priiuiple  of  that  determined  in  3  ICa>-t, 
iGO,— (cited  10  East,  JG5.) 

'JYnant  noin  year  to  year  underlet  part  of  llie  prenjifes,  and  lli'ti 
gjjve  lip  to  his  landlord  the  part  remaining;  in  his  own  possessiop,  witli- 
out  either  ri'(*fivint;a  regular  notice  to  (juit  th(!  wholr,,  or  j^ivlni;-  notice- 
to  quit  to  his  siil)-lc.s«ee,  or  even  surrcn;leiing  that  j)  irt  in  t!»e  name  of 
the  whole.  The  landlord  cannot  cnl it Ic  hiuiBcIf  to  recover  aijainst  the 
sub-lessee,  (there  heiiig  no  privily  of  contract  between  them)  upon 
giving  half  year's  notice  to  quit  in  liis  own  name,  and  not  in  the  nunc 
of  the  first  lessee  ;  for  as  to  the  part  so  underlet,  the  original  tenancy 
still contiimcd  undetrrmintil  (n). 

Skctiox  II.      Of  Tenants  for  a  /ess   Tirm  than  from    Year 
to   Year  .  wherein  of  Ijoiij^'uii^s. 

We  have  had  occasion  l)efore  to  observe,  that  any  one  posscpsed  of  a 
certain  quantity  of  interest  may  alienate  the  whole  or  any  part  of  it, 
unless  restricted  from  so  doing  by  agrccnienl  (»f  the  party  from  whoni 
he  derives  that  interest  or  estate  or  by  the  terms  uimn  which  he 
takes  it. 

Upon  the  same  principle  he  may  demise  it  or  any  part  of  it  for  any 
term  shorter  than  that  of  whicli  he  is  possessed  ;  and  w  hen  part  of 
a  messuage  or  tenement  is  let  to  another,  it  is  called  a  lodging  or 
lodgings. 

Of  I.odc^inq-s. — Lodgings  may  be  let  in  the  same  manner  as  lands  and 
tenements  :  in  general  however,  tlicy  are  let  cither  by  agreement  in 
writing  between  the  landlord  and  tenant,  or  by  parol  agreement. 

It  is  a  general  rule  in  the  case  of  a  yearly  tenancy,  that  notice  to  quit 
must  be  half  a  year  before  the  expiration  of  the  year  ;  the  case  of  lodg- 
ings depends  upon  a  particular  contract,  and  is  an  exception  to  the 
general  rule.  The  agreement  between  the  parties  may  l)e  for  a  njonth 
or  less  time,  and  there  much  shorter  notice  would  be  suflicient 
where  the  tenant  has  held  over  tlic  time  agrec-J  upon,  than  in  the  other 
case  (b). 

The  whole  question  depends  tipon  the  nature  of  the  first  contract  : 
so  that  if  the  parties  have  agreed  that  the  tenant  shall  hold  for  a  term 
certain,  no  notice  of  course  can  be  necessary  (')  ;  but  if  the  tenant 
hold  for  no  particular  period,  reasonable  notice  must  be  given,  which  , 
is  regulated  generally,  if  not  always,  by  the  local  cuslom  of  llie  par- 
ticular place  or  district,  which  for  the  most  part  reijuires  the  same  spar-.' 
of  time  for  notice  as  tlie  period  for  which  the  lodgings  arc  taken,  as  a 

(i;  11  Kast.  mj  ,•    n.   K?  'O  Ibi.l. 


178  Of  Tenants  for  a  kss  Term.         [Chap.  VII. 

week's  notice,  A\hcrc  taken  for  a  week  ;  a  month's  vhere  taken  for  a 
month,  and  so  forth  ;  but  tlris  is  not  always  the  cage,  for  it  is  not 
always  necessary  (it  is  presumed)  that  a  quarter's  notice  should  be 
given  wliere  llie  rent  is  paid  quarterly,  and  it  is  understood  to  be  a 
quarterly  takin:;,  for  a  month's  notice  is  sometimes  customary,  and 
uhich  probably  a  court  and  jury  would  think  generally  reasonable  (a). 
If  a  house,  originally  entire,  be  divided  into  several  apartments,  with 
an  outer  door  to  each  apartment,  and  no  communication  with  each 
other  subsists,  in  such  case  the  several  apartments  are  considered  in  law- 
ns distinct  mansion-houses.  But  if  the  owner  live  in  the  house,  all  the 
untenanted  apartments  shall  be  considered  as  parts  of  his  house.  Yet, 
if  there  be  two  several  tenements  originally  and  they  become  inhabited 
by  several  families,  who  make  but  one  avenue  for  both,  and  use  it  pro- 
miscuously, the  original  severalty  is  so  far  recognized  and  regarded,  that 
they  continue  to  be  severally  rateable  to  the  poor  [I)). 

These  lodgings  constitute  such  an  interest  according  to  the  duration 
of  the  term,  that  to  many  purposes  the  lodgers  are  considered  in  law 
m  the  fight  of  householders,  and  enjoy  the  same  protection  and  greater 
immunities,  for  they  are  not  compellable  to  serve  parish  offices. 

As  to  the  question,  w  hat  shall  be  deemed  the  house  of  the  party 
within  the  meaning  of  domns  mansio7iaUs,  it  turns  upon  the  fact  of  there 
being  an  outer  door  or  not ;  for  every  house  certainly  must  have  an 
outer  door. 

Thus  chambers  in  inns  of  court  and  in  colleges,  which  have  each  of 
them  an  outer  door  that  opens  upon  the  conmion  staircase,  have  beeR 
held,  in  case  of  burglary,  to  be  the  houses  of  the  respective  occupiers. 
From  the  nature  of  these  buildings,  they  are  all  as  several  houses,  and 
have  separate  outer  doors  which  are  at  tlie  extremity  of  the  obstruction  ; 
because  the  staircase  is  no  outer  door  :  again,  they  are  enjoyed  as  sepa- 
rate property  ;  in  Lincolns  Inn  they  have  separate  estates  of  inheritance, 
in  the  others  they  have  estates  for  life,  and  in  colleges  as  long  as  they 
reside.  So,  if  that  which  was  one  house  originally  come?  to  be  divided 
into  separate  tenements,  and  there  is  a  distinct  outer  door  to  each,  thpy 
M  ill  be  separate  houses,  as  Nciicastle  House.  The  distinction  therefore 
ran  only  l)e  between  several  outer  doors,  and  one  outer  door  (.). 

1  licrefore  if  one  hire  a  part  of  a  house  to  lodge  in,  u  hich  is  actually 
divided  from  the  rest,  and  have  a  door  of  his  own  to  the  street,  a  bur- 
glnry  committedtherein  may  be  alledged  in  domo  mnymonali  of  such  per- 
son {d)  ;  and  even  if  the  owner  occupy  a  sliop  or  cellar  in  the  house, 
unless  he  sleep  therein,  it  is  the  mansion  of  each  lodger,  although 
tl'^rr  he  but  one  outer  door;  but  it  is  otherwise,  if  the  owner  sleep 
therein  (<■ ), 

("    '  K-p    Tl    !li.  (t)  c  ;\f„j,    2U.  CO  Co-,vp.  8. 

•.   1   :i!..-.   v.  C.  \ii.  s.  15.  («)  Ib^ir.  1,-. 


Sect.  II.]     llkuifrom  y\ar  lo  }'i(ti:     Of  Lod^im:..  17^ 

A  liousc,  in  lUct,  v  herein  a  iH.tmhvcll.s  f<»r  only  pari  nf  llic  N<ar,  or 
Avhich  he  has  actually  hired,  l>itt  not  inov  td  into  ;  or  a  <  iianiher  in  an 
inn  of  court,  or  a  house  hired  by  a  man's  m  ilV,  lor  licr  sejwratc  resi- 
dence wifhou  this  knowledge,  "  for  it  is  the li unhand 's  hoiife,"  ;ire  all  of 
them  sufhcioiitto  satisfy  the  \vor.ds  downs  mdn^iomilU  [<t). 

But  if  the  person  had  taken  an  apartment  a.s  a  shop  or  uorklioufic, 
for  his  ii.-c  in  the  day-f  inie  only,   ii  fcenis  that  a  felony  then  ui  cannot 
Ik:  alleilged  to  Jiave  been  committed  in  the  nwjnsi(tn-hou>(' :  not  of  l)ini 
that  lets  it,  because  it  is  severed  by  tlic  lease  from  that  part  of  the  houw,- 
wiiich  belon:;s  to  him,  nor  of  him  to  v  liom  it  is  let,  because  iie  does 
not  take  it  to  lodge  in.     But  if  he  sleep  in  any  part  of  the  buildin:;, 
however  distant  from  the  shop,  it  may  be  ailedged  to  be  Jiis  mansion- 
house  ;  provided  the  owner  does  not  sleep  under  the  same  roof  also  (//). 
So  where  a  burglary  is  committed  in  the  apurlments  of  one  who 
lodges  in  a  house,  the  circumstance  of  the  o\\ner  living  in  it,  or  occu- 
pying otily  a  shop  or  cellar,  in  which  he  does  not  sleep,  makes  a  very 
material  diilcrence  as  to  the  form  of  the  indictment  :    for  in  the  latter 
case,  the  lodger  has  tJie  outer  door  entirely  to  himself,  and  the  burglary 
in  such  case  must  be  laid  in  the  house  of  the  lodger;  but  it  is  other- 
wise in  the  former  case,  for  there  it  must  be  laid  in  the  house  ui'  the 
owner  (r). 

Jf  witli  intent  to  rob  a  house,  a  person  takes  lodgings  in  it,  and  then 
fall  on  tiic  landlord  and  rob  him,  such  person  is  guilty  of  burglary  (<'). 
As  to  the  stat.  3U  Eliz.  c.  lo.  makiUji;  it  a  capital  felony  to  commit  a 
larceny  of  goods  to  the  value  of  05.  in  a  dwelling-house  in  the  ;!ay-tiii:c, 
it  seems  agreed  that  a  chamber  in  one  of  the  inns  of  court  wherein  a 
person  usually  lodges,  is  properly  a  dwelling-house  within  the  statute; 
but  a  lodging  in  H'lutrhalt  or  Somrrscl  lluiise  is  not  {.•). 

But  this  privilege  of  a  lod;^er's  tenement  being  reganlcd  as  his  man- 
sion-house, extends  only  to  the  purposes  of  protec'ion  to  a  man  and 
his  fimily,  and  is  to  be  taken  strictly  (  /}.  A  bailiff,  therefore,  in  l!ic 
c.xecidion  of  mesne  process  may  break  open  the  door  of  a  lod.u;er,  hav- 
ing first  gained  peaceable  entrance  at  the  outer  door  of  the  house  ;  for 
the  rule,  that  every  man's  house  Ls  his  castle,  must  be  confined  to  the 
breach  of  windows  and  of  outer  doors  intended  for  the  security  of  the 
house  ai2;ainst  persons  from  w  ithout  endeavouring  to  break  in  (i/-). 

I'or  the  protection  of  lanillords  against  a  species  of  pillage  to  which 
persons  letting  ready-furnished  lodgings  are  nmch  exposed,  it  being 
doubted  whether  the  taking  things  in  a  lodging-room  was  more  than  a 
breach  of  trust  at  common  law,  because  of  their  beinu;  lent  to  a  person 
and  lawfully  in  their  possession,  therefore  the  taking  away  from  sueli     f 

(a)  1  Haw.  P.  C.  163.  (6)  \h\4.  IM.  »    16.  (e)  Cowp.  8 

(rf)  Haw.  P.  C.  161    9    S  f»^  2  H»w.  P.  C.  SnO.  i.  97.  Cro.  Car.  47. 

(/;  Cttwp    I  (J)  KoiU  C    L    til    Hoinieidr.  c    8   »   ja 


i\^0  Of  strict  Tenants  at   Will.        [Chap.  VII. 

lotlgings,  uitli  an  intent  to  steal,  embezzle,  or  purloin  any  chattel,  bed- 
ding or  furniture,  which  by  contract  or  agreement  they  arc  to  use,  or 
shall  be  let  to  them  with  the  said  lodgings,  is  made  larceny  and  felony 
(rt). — A  man  and  his  w'lic  cannot  both  be  guilty  of  the  same  larceny 
in  robbing  tluir  lodgings  ;  for  if  they  both  had  committed  it  together, 
the  woman  must  be  acquitted,  for  she  is  under  his  coercion.  If  the 
lodgings  be  let  jointly,  it  is  the  taking  of  the  husband  only  (b). 

In  resi)cct  to  letting  houses,  though,  as  has  been  before  observed  (c), 
there  is  no  distinction  in  reason  between  houses  and  land,  as  to  the 
time  of  giv  ing  notice  to  quit  in  yearly  tenancies,  it  being  necessary  that 
l)oth  should  be  governed  by  one  rule,  and  that  where  rent  is  reserved 
quarterly,  it  does  not  dispenscnith  the  regular  six  months  notice  to 
quit  required  by  law,  but  is  merely  a  collateral  matter  {d)  :  yet  in  the 
case  of  a  house  being  let  for  a  shorter  term  than  a  year,  the  holding 
assimilates  itself  to  that  of  a  lodging:  therefore  where  a  house  was 
taken  by  the  month,  it  was  held  that  a  month's  notice  was  sufficient : 
for  a  notice  to  quit  has  reference  in  all  cases  to  the  letting  (c). 

A  tenant  from  week  to  week,  continuing  in  possession  after  the  expi- 
ration of  a  notice  to  quit  and  demand  made,  is  not  liabl-e  to  an  action 
on  the  stat.  4  Geo.  3d.  c.  28.  for  double  value  (/). 

If  the  lodgings  be  furnished,  it  may  I)e  as  well  to  have  a  schedule  of 
th3  goods  they  contain  affixed  to  the  agreement,  if  there  be  one  in 
Avriting  ;  in  the  same  manner  as  in  the  case  of  a  lease  of  a  house  w  ith 
goods  {cf). 

Section  III.     Of  strict  Tenants  at  Will. 

Although  courts  of  law  have  of  late  years  leaned  as  much  as  pos» 
sible  against  construing  demises  (Ji),  Avherc  no  certain  term  is  men- 
tioned, to  be  tenancies  at  w  ill,  but  (as  we  have  just  seen)  have  rather 
held  them  to  be  tenancies  from  year  to  year  so  long  as  both  parties 
please,  especially  where  an  annual  rent  is  reserved  (i)  ;  and  although  it 
is  said,  that  in  the  country,  leases  at  will  in  the  strict  legal  notion  of  a 
lease  at  will,  being  fou^d  extremely  inconvenient,  exist  only  notionally, 
the  observation,  IMr.  JLirgravc  thinks,  means,  not  that  estates  at  will 
may  not  arise  now  as  w  ell  as  formerly,  but  only  that  it  is  no  longer  usual 
to  create  such  estates  hy  express  words,  and  that  the  Judges  incline 
strongly  against  implying  them  (/t). 

Tenant  at  uill  is  where  lands  or  tenements  are  let  by  one  man  to 
another,  to  have  and  to  hold  to  him  at  the  will  of  the  lessor,  by  force 
of  which  lease  tlie  lessee  is  in  possession.  In  this  case,  the  lessee  is 
called  tenant  at  will,  because  he  hath  no  certain  nor  sure  estate,  for  tiie 

(")  Sal.  3.       .  k  M.  c.  9.  B.  5.  (i;  1   Haw.  P.  C.   137.  n.  3.  (r)  )  T.   K.  Ifi2. 

>d]  E.|'    ISn.  (t)  luid.  34.  (J)  2  Canipb.  4W.  (g^  Vidt  antt,  H2,  3.- 

.A;  2  BL  Oira.  Ml.  .."""a  Bur.  K.  1C09.  (k;  Co.  Lit.  45. 


Sect.  I.]  Of  slrict  Tenants  at   Will.  181 

lessor  may  put  him  out  at  what  time  it  plca'-ttU  him.     Hut  cvGiy  lease 
at  will  mu.st  he  at  the  uili  of  hoth  parties  («). 

If  a  termor  grants  the  land  i^encraliy,  the  grantee  is  !)ut  tenant  at 
will ;  for  it  does  not  appear  that  the  ^'rantor  meant  to  pass  his  wliolc 
interest,  and  this  is  enough  to  satisfy  the  qrant. — But  if  a  termor  de- 
vises the  land,  all  his  term  patfscs  ;  for  the  devisee  cannot  be  tonunt  at 
■will,  because  the  devisor  must  die  before  the  devise  can  take  eilect ; 
and  one  caimot  be  tenant  at  will  to  a  dead  man  {0). 

If  one  lease  for  years,  with  a  proviso,  that  lessor  may  enter  at  his 
will,  it  is  a  lease  at  will  (r). 

So,  if  one  demises  a  tenement  to  another  excepting  the  new  liouse 
for  his  habitation,  when  he  pleases  to  stay  there,  and  at  other  times 
for  the  use  of  the  lessee ;  the  lessee  has  tlie  new  house  as  tenant  at 
will  id). 

So,  if  one  give  to  anotlicr  licence  to  take  the  profits  of  \u<  land  with- 
out mentioning  for  how  long  a  period,  or  reserving  an  ainmui  rent,  it 
shall  be  a  lease  at  will  (r). 

A  man  who  enters  and  enjoys  under  a  void  lease,  and  pays  rent,  is  a 
tenant  at  will,  and  not  a  disseisor  (/). 

But  if  a  man  enter  by  colour  of  a  grant  or  conveyance  which  was 
void  and  did  not  stand  with  the  rule  of  law  ;  he  shall  be  disseisor,  and 
not  a  tenant  at  will  (^q-). 

A  mortgagor  is  in  some  respects  strictly  tenant  at  will,  and  in  many 
oases  is  like  a  tenant  at  will  (h). 

Therefore  if  a  mortgagee  covenants  that  the  mortgagor  shall  lake  the 
profds  till  default  of  payment;  or  that  the  mortgagor  and  his  licirs 
shall  take  the  prolits,  in  the  one  case  the  mortgagor,  and  in  the  other 
his  heir  after  his  death,  shall  be  tenant  at  will  (/). 

But  if  mortgagee  covenants  that  he  will  not  take  the  profits  till  de- 
fault of  payment,  and  the  mortgagor  enters  immediately  ;  he  shall  not 
be  tenant  at  will,  but  only  at  sufferance  ;  for  it  was  not  agreed  that  he 
should  take,  but  Uiat  the  mortgagee  should  not  take  (/r). 

A  mortgagor  however  is  not  pr  >perly  a  tenant  at  w  ill  to  tlic  mort- 
gagee, for  he  is  not  to  pay  him  rent ;  he  is  indeed  as  much  if  not  more 
like  a  receiver  than  a  tenant  at  will ;  though  in  truth  ho  is  not  cither 
(/).  lie  is  only  a  tenant  at  will,  because  he  is  not  entitled  to  the  grow- 
ing crops  after  the  will  is  determined  ;  for  the  inortg  i^ee  may  bring 
his  ejectment  at  any  moment  that  he  will  ;  and  he  is  entitled  to  the 
Chtatc  as  it  is  with  all  the  crops  growing  on  it  (m). 

If  tenant  for  years  continues  after  his  term,  and  his  rent  is  paid  and 
accepted  as  before,  it  is  said  that  he  shall  be  tenant  at  will ;  but  that 

,  -O  Co.  Lit.  S:..  >ht  1  Silk.  435.  (c)  Co.  Lit    55.  a.                   'd]  t  Mod.  9. 

if)  3  Salk.  2X1                      ■  I  1  Wjls.  178.  (g)  Com.  Dig  lit  "  Ert«f .*'  iH.  2.) 

(A)  i  T.   R.  3'rtj                                              ;i)  Com.  D:f    »J  onic  (H     1  ;  Cro.   J»C.  6B0 

.'i  Ton    "•       •                        •■  "■    ■  i,  Ui\tt    •-■K',  ;;.                    'm;   1  T.   R.  3881 


182  Of  strict  Tenants  at   Will.       [Chap.   V^II. 

wljile  lie  Mj  coiifinucb,  till  !iis  rent  is  paid  iiud  accepted,  he  is  tenant  at 
sulTcrancc  or  luther  at  ^^  ill.  This  however  wouki  be  now  construed  to 
be  a  tenancy  from  year  to  year  (a). 

\\'hen  tenancy  at  will  was  more  known  than  it  is  now,  the  relation 
might  be  detcrmiiied  at  any  time  ;  not  as  to  those  matters  which  during 
the  tenancy  remained  a  common  interest  between  the  parties ;  l)utasto 
any  new  contract  the  \\  ill  might  be  instantly  determined.  When  that 
interest  was  converted  into  the  tenancy  from  year  to  year,  the  law  fixed 
one  positive  rnle  for  six  months'  notice  ;  a  rule  that  may  hi  many  casee 
be  very  convenient ;  in  others,  as  for  instance,  that  of  nursery-grounds, 
most  inconvenient  (/>). 

If  a  tenant  whose  lease  is  expired  is  permitted  to  continue  in  posses- 
sion, pcn'-Hng  a  treaty  for  a  further  lease,  he  is  not  a  tenant  from  year 
to  year,  but  so  strictly  at  will,  tliat  he  may  be  turned  out  of  possession 
Avithout  notice  (r), 

A  lessee  at  will  may  take  a  lease  of  the  inheritance,  and  thereby  his 
estate  is  enlarged  ;  or  a  confirmation  for  his  life,  upon  which  a  remain- 
der may  be  dependant  (c/). 

AV'hepe  a  lease  is  made  at  will,  rent  being  payable  quarterly,  theles- 
sce,  after  a  quarter  of  a  year  is  commenced,  may  determine  his  will,  but 
then  he  must  pay  that  quarter's  rent  (c)  ;  and  if  the  lessor  determine 
his  will  after  the  commencement  of  a  quarter,  he  shall  lose  his  rent  for 
that  quarter.     So,  if  half  yearly  (/). 

Tenant  at  will  may  be  ousted  also  by  express  words,  or  by  implica- 
tion :  as  if  lessor  come  u^win  the  land,  and  say  that  lessee  shall  not  con- 
tinue over,  he  may  determine  his  w  ill,  though  in  the  absence  of  the  les- 
see.    But  words  off  the  land  will  not,  till  notice  to  the  lessee  {g). 

Any  act  of  desertion,  or  which  is  inconsistent  with  an  estate  at  will, 
done  by  the  tenant,  operates  as  a  determination  of  the  estate  ;  at  as- 
signment over  to  another,  or  commission  of  an  act  of  w  aste  (//), 

If  therefore  t(nantat  will  take  upon  him  to  make  a  lease  for  years, 
which  is  a  greater  estate  than  he  may  make,  that  act  is  a  disseisin  [and 
a  determination  of  the  will.]  (/). 

But  though  lessee  at  will  make  a  lease  to  commence  at  a  future  day, 
it  docs  not  amount  to  a  determination,  till  the  lease  commences  in  point 
of  interest.  So  of  an  extent,  till  the  liberate  ;  and  of  outlawry,  till 
seizure  (/;). 

Though  a  person  let  into  possession  under  an  agreement  to  purchase, 
may  be  consideied  as  tenant  at  will,  yet  his  admission  of  a  fictitious  lease 

{a)  Com.  Dig.  lit.  "Estates"  (H.  1.  and  I.  1.;  (I)  ic  Ves.  1.  57. 

«••  2  l-^p.  K.  717.  (./)  Com.   Dig    ul  nntt  (H.I.) 

'<.<)  :l  bulk.  2L'2,  413.  4  Mod.  7!).   1   I-rt.   Ilaym.   Tul'.  2  J  bill.   1008. 

{f  I  Com.   Dig.  til.  "  K«iales"  (H.  i)  )  (f)  Ibid.  (U.  6.; 

(h)  Crui-c'B  Ijig.  tit.  ix.  s.  17.    1  Jii:t.  57.  a  5.'..  h    ii    C  {o  Cro.  Car  301. 

.t)  Conn.   I)i2    /((  atitr 


Sett.  IV'.j  OJ   Tviumts  at  stifjiramt.  \\va 

l)y  cntcrinu;  into  tlic  cominon  consent  rule  is  not  a  constructive  (Ictcniii 
nation  of  the  w  ill  w  lu  rcon  un  cjcctmci;!  is  nmint  linaMe  (^0. 

Hut,  thoii;!;li  ii  tcn:iiit  ;it  \\ill  is  at  (In;  will  of  both  partieh',  (lir  will 
shall  not  he  (leternnncd  l)y  cv<ry  act  (!i). 

Thus,  uhcre  a  feme  lessee  at  wilJ  tal^es  hiisl)an{l,  or  a  feme  nialics  a 
lease  at  will  and  take^  luisi)ancl,  although  the  feme  hat ii  put  her  will 
in  her  husband,  yet  it  shall  not  he  said  to  he  a  determination  without 
the  election  of  the  lessor  or  the  hushiuid  {<). 

In  tenancies  at  will  the  rent  hecomes  due  in  consideration  of  tlic  oc- 
cupation ;  which,  it  is  said,  nuiPt  therefore  he  averred  (d). 

Tenant  at  w  ill  ha.s  an  estute  tiiat  he  cannot  forfeit  for  treason  (r). 


Section  \V.     Of  Tnianls  at  suffcranrt . 

Tenant  at  suflerance  is  he  who  enters  by  lawful  demise  or  title,  and 
afterwards  wrongfully  continues  in  possession  :  as  if  tenant  pur  aider 
vie  continues  in  possession  after  the  death  of  t])e  rt  stui  (juc  vie  (/). 

So,  any  one,  mIio  continues  in  possession  witliout  at^reenicnt,  after 
;i  particular  estate  is  ended  (i^). 

There  is  a  great  diversity  therefore  between  a  tenant  at  will  and  a 
tenant  at  suflerance  ;  for  tenant  at  w  HI  is  always  by  ricjht,  whereas 
tenant  by  siiirerance  entereth  by  a  law  ful  lease,  and  holdeth  over  by 
wrono;  (//). 

But  against  the  kinu;  there  is  no  tenant  at  sulTcrancr,  for  the  kino;  not 
lieing  capableofcomniitting  laches,  such  jxirson  will  be  an  inlriuler  (/). 

So,  if  a  guardian  continue  in  possession  after  the  full  age  of  the  heir : 
he  Is  not  a  tenant  at  si!lVerance,biit  an  abator  (A). 

]\rortgagee  covenants  that  mortpigor  shall  quietlyVnjoy  till  defanit 
of  payment,  and  assigns:  after  assignment,  m()rti;af:;or  is  only  tenant  at 
suflerance  ;  for  Ids  continuing  in  possession  does  nut  turn  the  term  to  a 
right  (/). 

(rtj  13  Ea-it,  110.  CtJCro.  Car.  303.  C< ■;  Ibi.I.  301. 

<0  I  I.d.  Uayiii.  171.  Salk    209.  (>■)  1  Will*.  ITfi.  </)  Co   Lit.  37   b 

f)  Com.  I>»K.  u:  «..<<•  (h)  Co.  I  i\    '.7    t.  >  t!..,'  ■  '  "    '    "    '  ■      ^ 


[     J  81 


CHAPTER  yill. 


Of  the  general  Incidents  to  Leases. 
Section  I.     Rent,  when  and  how  payahle. 

Of  Public  ImposilionSy  parochial  aad  parliamentary. 
Section  II.     Taxes. 
Section  III.     Poor's  Rate. 

Section  I.     Merit  when  and  how  payahle,  &'c. 

IX  a  preceding  part  of  this  work  we  have  had  occasion  to  explain 
the  nature  of  rent,  and  the  diHerent  kinds  thereof. 

It  must  be  remembered,  that  a  rent  cannot  at  law  issue  out  of  a  terra 
of  years,  but  must  come  oat  of  the  reversion;  therefore,  ifa  lessee  as- 
sign his  term,  he  cannot  distrain  for  the  rent  without  expressly  reserv- 
ing a  power  for  that  purpose  (o). 

The  reservation  of  rent  ought  to  be  certain  ;  for  if  a  man  demise, 
rendering  "  after  the  rate  of^'  121.  per  ami.  while  the  lease  continues, 
it  will  be  void  ;  for  it  does  not  appear  what  rent  he  shall  pay  in  cer- 
tain, or  at  what  lime  :  wherein  it  differs  from  a  contract  for  goods,  for 
in  sucli  case  the  jury  may  judge  of  the  value  (6). 

Reservation  of  Rent. — As  to  what  is  deemed  a  good  reservation  of 
rent,  if  a  man  makes  a  lease  of  Dlackacre,  to  commence  infuturo,  and 
of  Whiteacre,  to  begin  inprccsenti.  rendering  rent  payable  at  Michael- 
mas before  the  commencement  of  the  term  in  Blackacrc,  this  is  a  reser- 
vation immediately,  for  it  is  but  one  entire  rent,  and  as  such  is  payable 
according  to  the  reservation  (c). 

So  it  is,  if  a  man  grants  a  future  interest  inland ;  as  if  it  be  a  lease 
for  years  to  commence  five  years  after  the  making  of  the  lease,  the 
lessor  may  reserve  a  rent  immediately,  because  this  is  a  good  contract 
to  oblige  the  lessee  to  pay,  and  the  lessor  may  have  an  action  of  debt 
on  the  contract,  and  may  likewise  have  his  remedy  by  distress  for  the 
arrears  when  the  lessor  comes  into  possession  {d). 

A  lease  of  the  vesture  or  herbage  of  the  land,  reserving  rent,  is 

ta)  2  Wil?.  375.  (b)  1  Salk.  282.    4  Mod.  79.  (c)  Gjlb.  on  Rents,  .2». 

^)  Ibid. 


St'tt.  I.]  Riut  ;  nst  rvdlion  iitt  nnj.  135 

good;  l)rcaiisc  the  Icfsor  may  C(;nu' upDii  the  land  to  distrain  the  l«-s- 
tee's  hcasts  ^cc<lill^  thereon  (/<)• — l>nt  a  reservation  of  ^ra.'>s,  lierham", 
or  othtT  vesture  <»f  the  land  would  he  had,  heciuise  tliey  are  part  of  the 
Thing;  deiniscd  {!>). 

So,  where  hy  articles  of  a^rrenunt  indented  hetweoi  //.  ai.il  /j.  ii  i- 
coveiianted  and  agrenl,  that  A.  dolli  let  JilarkarrcXo  li.  for  live  years 
provided  always  that  7^.  ishall  pay  at  Michaelmas  dM(\  I. ady-daij  10/.  I»y 
even  portions  yearly;  thi?  proviso  is  a  i;ood  r(>''rvati<)nof  tlu  r<i.t,for 
as  the  wordi  amount  to  an  ininiciliate  deini'-e  ol  the  land,  the  rent, 
which  is  but  a  retribution  for  the  land,  oiit^ht  to  be  paid  iniinedialcly  ; 
and  it  cannot  be  construed  to  a. sum  in  ^ro«,  because  l)y  the  words  of 
the  articles,  (wliicli  beiiii^  indented  are  the  words  of  both  parties,)  it  is 
to  be  paid  yearly  (r). 

A  dilVercncc  is  hereto  be  noted  between  a  rent  reserved  entire  in  the 
rcdilridum  upon  a  (Uniise  of  several  tliinc;s  in  the  san:e  lease  (for  tiic 
reservation  shall  be  taken  as  one  nnd  entire)  autl  \\  here  the  rent  is  not 
at  first  reserved  entire,  but  upon  the  reservation  is  several  and  appor- 
tioned to  the  several  things  demised. — For  instance,  if  a  lease  be  nia(l<; 
of  several  houses,  rendering-  the  annual  rent  of  -5/.  at  the  two  usual 
feasts,  viz.  for  one  house  3/.  for  another  IO9.  and  for  the  rest  of  the 
houses  the  rcsidueof  the  said  rentof  0/.  witli  aclause  of  re-entry  int-. 
all  the  houses  for  non-payment  of  any  parcel  of  the  rent;  this  is  but 
one  reservation  of  one  entire  rent,  because  all  the  houses  were  leasj-d, 
antl  the  o/.  was  reserved  as  one  entire  rent  from  then)  ail, and  the  "  :•.■-." 
afterwards  docs  not  alter  the  nature  of  the  reservation,  but  only  dcclarci; 
the  value  of  each  house  (r/). 

But  if  tlie  lease  had  been  of  three  houses,  rcnderini;  for  otie  house 
3/.  for  another  20s.  and  for  the  third  20^.  w  ith  a  condition  to  re-enter 
into  all  for  the  non-payment  of  any  parcel ;  there  are.  three  several  re- 
servations,  and  in  tlie  nature  of  three  distinct  demises,  for  whicii  tin 
avowries  must  likewise  be  several ;  for  each  house  in  this  case  is  onls 
chargeal)le  w  itii  its  own  rent,  the  entire  sum  beiii^^  not  at  first  reserved 
out  of  all  tiK;  houses  demised,  and  afterwards  apportioned  to  the  sev- 
eral  houses  according  to  their  respective  value,  as  in  the  former  case; 
but  the  particular  sums  arc  at  first  reserved  out  «jf  the  several  house.s 
nnd  therefore  the  non-payment  of  the  rrnt  of  one  house,  can  l>c  no  cause 
of  entry  into  another  (c). 

So,  if  one  demises  the  scite  and  demesnes  of  a  manor,  and  also  the 
manor  itself,  and  all  othex  lands  and  tenements  tliereunto  belor'/iiit, 
reserving  for  the  saiil  scite  and  demesnes  and  premises  thcreu  ith  letlc-ii 
9/.  this  is  not  a  joint,  but  a  several  lease,  viz,  one  lease  ftir  the  scite  and 
demesnes,  and  another  for  the  residue  of  the  manor,  and  the  reserva- 
tions also  are  several  and  distinct  (/). 

la]  r.ilh   on  Rpnf?,  26.  (6)  Co.  T.if    «7.  r.Vih    on  Rei>«i,  X.'.  d    Oii'l  5* 

.fej  niid  (/;  ihM  36.    Cro  TXtt    ■•-. 


Iu6  Rail;  rcsc nation  tlicreof.  [Cliap,  VIIL 

So,  if  a  lease  be  made  of  two  manors  habendum,  one  manor  for  20s. 
ami  Iheotlifi-  manor  for  10^.  these  are  several  reservations:  and  each 
manor  is  charged  with  its  respective  rent  (ti). 

\i  tlie  respective  rents  were  equal  •  ims,  it  would  make  no  difFerence 
it  semis ;  so  as  the  words  in  the  habendum  make  it  as  several  leases. 

But  u  here  one  made  a  lease  of  a  cellar  for  a  year,  and  if  at  the  end 
of  the  year  tJie  ])arties  should  ayree  that  the  demise  should  continue, 
tiien  to  have  and  to  hold  iJie  same  for  tiiree  years,  "  rendering  from 
that  time  annually  during  the  said  term  40.s."  this  is  one  entire  reser- 
vation, as  weil  for  the  first  year  as  for  the  three  years ;  for  the  words 
diito  termino  extend  to  botli  terms  indiii'erently  (/>). 

As  there  may  be  several  reservations  in  the  same  lease,  by  the  word^ 
of  the  parties,  so  there  may  by  act  of  law  :  as  where  a  lease  is  made  to 
a  bishop  in  his  public  capacity,  and  /.  S.  reserving  a  rent ;  the  lessees 
are  not  joint-tenants,  but  tenants  in  connnon,  and  therefore  tlie  reserva- 
tion in;ist  be  stvcjal,  and  the  reservation  to  which  the  rent  is  incident 
nmst  loliow  the  nature  of  the  particular  estates  on  which  it  de])ends, 
an  i  therefore  must  be  several  also  (r). 

So,  if  there  be  two  tenants  in  common,  and  they  make  a  lease  for 
life,  rendering  rent,  this  reservation  tho!ii,',h  made  by  joint  words,  shall 
follow  the  nature  of  the  reversion,  which  is  several  in  the  lessors;  and 
therefore  they  shall  be  put  to  their  several  aR-rizes,  if  they  be  disseised, 
as  if  they  had  been  dihlinct  reservations.-^ — But  if  the  reservation  had 
been  nf  a  lnuf-c,  or  hawk,  or  any  other  thing  not  in  its  own  nature  se- 
vefahle,  then,  for  the  necessity  of  the  case,  the  law  admits  them  to  join 
in  one  assize  (f/,). 

Upon  a  surrender  reserving  rent,  though  the  rent  is  Mot  good  by  way 
of  reservation,  yet  it  shall  be  so  by  way  of  contract. 

If  a  lessee,  however,  simply  covenant  to  pay  such  a  sum  yearly, 
w  ithoiit  mentioning  it  as  a  consideration  of  the  demise  of  the  premises, 
il  has  been  held  to  be  not  a  rent,  but  a  sum  in  gross  (<■ ). 

In  an  action  of  debt  on  an  agreement,  it  appeared  that  the  plaintiff 
covtnanted  by  the  agreement  to  grant  a  lease  of  certain  premises  upon 
c,  rfain  eonditions  therUn  spcciiied  and  at  a  certain  rent.  The  defen- 
dant covenanted  to  pay  a  certain  rent,  and  perform  certain  conditions 
on  which  the  lease  was  to  be  granted.  Tlie  declaration  averred  that 
thedeiendant  had  entered,  upon  a  breach  for  non-payment  of  rent. 
A  former  lease  to  one  Ednmuds  had  subsisted,  at  tlie  expiration  of  which 
ti  *i  menlioned  in  the  agreement  as  to  ])e  granted  to  the  defendant,  was 
to  louniiencc ;  the  declaration  averred  that  Edmunds*  lease  had  expired, 
and  that  the  defendant  liad  entered  ;  but  not  that  any  lease  had  been 
niide.  'J'here  was  aiiiO  a  coi;n!  for  use  and  occupation: — Upon  de- 
iiiurrer  to  the  first  special  counts;  Lord  Kcni/on,  C.  J.  said,     "  I  have 

(n)  0;ib.  on  Keiits,  ac.  (L)  I'M.  .  fc)  IbiU.  37. 

(rf-.  Il.ifl.  (O  I  T    R.  441- 


Sect.    I.]  Ifdlt  ;    riSdintiuil    l/nrni!.  JK7 

always  a<lniiiT(l  an  rxprcssion  of  l.orJ  llnrilnirhr.  Dial  lltn;  i.-  ii<i 
inai;ic  in  words.'  It  apiM'ais  Ihal  a  rriit  uas  to  Ixcomc  (fut- nna  r«r- 
tain  day  nicntlonrd  :  perhaps  this  nionry  to  hv  piid  is  not  slrirlly  to 
lie  callr<l  rent,  the  relation  of  landlnr  I  and  (mant  not  havinc;  thru 
conuuenced  :  hut  still  the  parties  inlfiuh-d  that  this  nifiney  f-lioid<!  I>c 
paid,  accordini;  tot  lie  l>est  conslruci  inn  I  can  give  of  the  ai;reenunt. 
Collectin-i  tlierefore  the  meaninij  of  the  parties,  without  eiiruinlit;rini» 
myself  w  ilh  the  technical  nunru'ni;  of  the  wird  r</»/,  I  think  tht  crisc  is 
V  itli  the  plaintill.  llie  other  Jiidms  agreed  in  opiniitn  \\it!i  Lonl  AV/i- 
i/on.  They  <>l)served  that  tlie  citmlifi ms  nu-ntioned  in  the  lease  «crc 
the  rondil  ions  of  sale  at  the  aij<  lion  at  which  it  was  hargained  f<tr. 
I'he  intent  teemed  to  he  that  the  defendant  should  after  the  ddcrr.si- 
nation  o{  Kdimmds'  lease,  take  pobses.-ion  ajul  proceed  to  covtr  in  the 
house.  On  the  house  being  covered  in,  tJie  plaintiils  wen;  to  grant  a 
lease;  hut  in  order  to  instigate  the  defendant  to  do  t'lis,  \i\t  was  to  pav 
annually  a  certain  sum  before  the  qranliui^of  the  loa«c,  ecj;:al  to  what  he 
^vas  to  pay  afterwards,  the  wlinle  heint;;  denominah d  "  rdit.""  If  that 
were  not  meant,  the  covenant  to  pay  rent  was  useless,  for  the  lea'e 
when  made,  would  certainly  contain  such  a  covenant. — The  deed  ami 
conditions  of  sale  were  obscurely  wordeil^  thougli  it  appeare<.l  that  t]ic 
city  of  London  had  used  that  form  for  upwards  of  a  century  ('0- 

AWr  also,  a  diversity  between  a  reservation,  which  is  ai v. ays  of  a 
thing  not  in  esse,  but  ne\\  ly  created  or  reser^ed  out  of  the  Iniid  or  te- 
nement demised  ;  and  an  exception,  which  is  ever  of  part  of  llu:  Ijjint^ 
granted,  and  of  a  thing  in  t-sse  (A). 

Jlent  reserved  upon  a  lease  issuing  out  of  copyliolds  atiil  frocliolds 
(the  lea.se  of  the  copyhdld  beinj;  n;adewilli  license)  was  lield  good  n). 
But  the  rent  shall  be  considered  as  issuing  out  of  tlie  freehold  only,  as 
in  the  case  of  rent  issuing  out  of  land  and  goods. 

In  a  lease  oflands,  for  whicli  the  hssor  is  boinid  to  reserve  the  bc5t 
rent  that  can  begotten,  he  must  reserve  the  best  n  rii  than  can  beuotten 
at  the  time  the  lease  is  made,  without  any  regard  to  a  farmer  lease  in 
which  the  rent  might  have  been  fairly  r-served  on  account  of  mo.'iey  to 
have  been  expended  in  improvements  (r.'). 

If  there  be  an  order,  confirmed  by  parliament,  tliat  an  ir^entiH^of 
demise,  upon  whicli  a  rent  was  reserved,  sliould  be  vnprtted  au'l  can- 
celled, and  that  a  stranger  should  enter  into  tlie  lands  demised  and  re- 
ceive the  profits,  yet  the  same  nut  in  value  granted  by  il;e  lessee  for 
the  better  securing  the  rent  reserved,  is  not  dis!!iarL"'d,  although  Hie 
intention  appears  that  there  should  be  bi;<  <  ne  rent  paid  (r). 

Ihe  rent  must  'le  reservetl  to  the  lessor  himself,  and  not  to  a 
stranger  (/")  ;  for  it  ought  to  be  made  To  •l);m  fn»n»  MUan  tie  land 

(<i)  City  of  I'.ndiiu  v.  Vlfi,  T.  T.  ii  ■ 
(f)  Crn    F.liT  I'jj  l    ' 

L^    C*.  U:    > 


18B  lient;  reservation  thereof.         [Cimp.  VIII. 

parses  ;  and  wlieve  one  reserves  rent  to  a  stranger,  neither  the  heir  nor 
stran<;or  shall  have  it  («). 

Therefore,  if  a  man,  and  B.  his  son,  reciting  that  B.  is  his  heir  ap- 
parent,  lot  for  years,  to  commence  after  the  death  of  the  father,  (who 
was  sole  seised)  and  rendering  rent  to  the  said  B.  it  will  be  void  ;  for  a 
reservation  to  him  by  his  proper  name,  and  not  to  him  as  heir,  is  the  • 
same  as  if  it  were  to  a  stranger. — But  the  king  may  make  a  reservation 
of  rent  to  a  stranger  {(>). 

So,  if  a  lease  for  years  be  made,  rendering  rent  to  the  heirs  of  the 
lessor,  the  rcocrvation,  it  is  said,  is  bad,  because  not  to  the  lessor 
first  (r). 

The  clearest  and  safest  way  is,  to  reserve  the  rent  generally  during, 
the  term,  without  saying  to  whom,  aiid  leave  it  to  be  distributed  by 
the  law.  For  if  the  reservation  of  rent  be  general,  the  law  gene- 
rally directs  it  according  to  the  intent  and  the  nature  of  the  thing  de- 
mised (jl). 

This  has  always  been  taken  most  in  advantage  of  the  lessee  and 
against  the  lessor,  and  yet  so  as  the  rent  be  paid  during  the  time  (e)  ; 
for  if  no  person  l.e  mentioned,  the  reservation  shall  be  extended  by  im- 
plication of  law,  to  the  lessor  and  his  heirs  (/), 

But  if  tiie  reservation  be  only  to  t^e  lessor,  and  the  deed  do  not  say 
also  "  to  his  heirs,  executors,  <f.'v'."  this  reservation  shall  continue  only 
for  the  life-time  of  the  lessor,  and  shall  determine  with  his  deatli :  for 
exprcssumfdcit  rcssare  taciturn  (§■). 

So,  if  a  man  reserved  rent  to  him  or  his  heir,  it  will  be  goodtohira 
for  his  lilc  and  vuid  to  the  heir  [h).  So  also  if  the  lessor  be  seised  in 
Re,  and  make  a  lease  for  life  or  years,  renderihg  rent  to  the  lessor,  or 
his  executors  or  assigns  ;  in  this  case  the  rent  shall  continue  only  for 
the  life  oflhe  lessor  (/). 

But  if  the  reservation  be  to  the  lessor,  his  heirs  and  assigns,  in  the 
copulative,  or  in  the  disjunctive  to  him  or  his  heirs,  to  him  or  his 
successors,  (if  it  be  the  lease  of  a  corporation,)  during  the  term  ;  then 
all  tlu;  assignees  of  t  lie  reversion  shall  enjoy  it  (/i). 

So,  if  the  reservation  be  thus :  "  yielding  and  paying  so  much  rent," 
without  any  more  words,  this  shall  be  taken  !cr  all  the  time  of  the 
e.'lale,  and  si'.;|il  go  to  him  in  reversion  accordingly  (/). 

ror,  if  the  rent  be  nia<le  payable  yeaiiy,  without  saying  during  the 
term,  the  paymt-ut  must  be  made  during  the  term  (w). 

Therelore  ii'  a  man  seised  of  land  in  fee  makes  a  lease  for  years,  re- 
serving rent  to  him  ariti  his  assigns  during  the  term,  this  reservation 
fiidl  not  determine  by  the  death  of  the  lessor  us   was  once  wronglv 

(ii;  -'  Sai.nil.  Ax).                        {h)  Com.  1);»    Ut   Reiit  (H.  5  }  (r)  8  Cq.  R.  70. 

('0  Ibirf.  1  \ent.  t>;i.                    fc;  filu-j).  Touch.  II  j."  (/■;Uyer,5. 

C;l  S^.tp    Tiiiirh.  Hi  vith  tiinm  -^  Wni'^;.  SkiiiuI.  :ir.K  n     1';  (.■•)  Ci.  Lit. 21.1.  a. 

W  Com.  li:s.  tit.  Rtnt  (3.  i.)  Shej..  To.irli.u«n7ir.  rLj  V^vK              (lilbifl 
(Jnj  Moor,  lis. 


Sect.  I.]  Rnif  :  reservation  of,  109 

ruled,  l)ut  the  rent  sliuli  go  to  his  licir  {a)  ;  for  tlwugh  there  be  no  men- 
tion of  his  hnirs  in  the  reservation,  yet  there  are  wonls  which  cviilciilly 
declare  tlie  iiittntion  of  the  lessor  to  he  that  tlic  payment  of  the  rent 
shall  he  of  e(jii  il  duration  with  the  lease,  tlie  lessor  having  expressly 
provided  that  it  t-liall  be  paid  durini^  the  t<'rni  ;  consefjnently  the  rent 
must  lie  carried  over  to  the  heir,  who  conies  into  the  iniieritance  alter 
the  death  of  the  lessor  and  would  have  succeeded  in  possession  of  the 
estate  if  no  lease  had  been  made  :  and  if  the  lessor  assii^ns  over  his  re- 
version, the  assic;nce  shall  have  the  rent  as  incident  to  it ;  because  the 
rent  is  to  continue  during  the  term  ;  therefore  it  must  f(jilo\v  the  rever- 
sion, since  the  lessor  made  uo  particular  disposition  of  it  separate 
from  the  reversion  (It). 

If  tenant  in  tail  demise  for  years,  rendering  rent  to  him  and  his  heirs, 
this  goes  to  the  heir  in  tail  {< ). 

If  tenant  for  life,  with  power  to  mal^e  leases,  demises,  rendering 
rent  to  liim,  his  heirs  and  assigns,  it  shall  be  adjudgetl  to  him  in  re- 
mainder (^d). 

One  seised  in  fee  lets  for  years  reserving  rent  "  during  the  term"  to 
the  lessor,  his  executors,  administrators  and  assigns,  and  lessee  cove- 
nants to  pay  it  accordingly,  and  the  lessor  devises  the  reversion  and 
dies  ;  the  reservation  is  good  to  ccwitinue  the  rent  during  the  whole 
term,  and  the  devisee  shall  have  an  action  of  covenant  for  non-pay- 
ment (e). 

If  a  copyholder  by  licence  leases,  rendering  rent  to  him  and  his  wife, 
and  his  heirs,  w  here  by  the  custom  the  w  ife  has  her  free-bench,  the 
wife  shall  have  the  rent  as  incident  to  the  reversion  (/). 

If  a  lease  be  made  by  a  husband,  reserving  rent  to  him  for  life,  and 
to  his  wife  for  life,  it  will  be  a  reservation  during  the  life  of  the  sur- 
vivor (if). 

A  posthumous  child,  born  after  the  next  rent-day  had  incurred,  aftei 
the  death  of  his  father,  is  under  the  stat.  10  /J-  11  /r.  3.  c.  IG.  intitled 
to  the  intermediate  profits  of  the  land  settled,  as  avcU  as  the  lands 
themselves  ;  for  that  act  of  parliament  was  made  to  enable  posthumous 
children  to  take  estates  as  if  born  in  their  father's  life-time,  tliough  tiiero 
should  be  no  estate  limited  to  trustees  to  preserve  the  contingent  re- 
mainders (A). — Indeed  it  is  now  laid  down  as  a  fixed  principle,  that 
■wiiercver  such  consideration  would  be  for  his  benefit,  a  child  i/i  vciitrt: 
sa  mere  slmW  be  considered  as  absolutely  borti ;  for  all  the  cases  estab- 
lish this  point,  that  there  is  no  distinction  between  a  child  in  ventre  sa 
vicrc  and  one  actually  born  (/). 

It  may  be  observed  that  *'  heir"  is  the  only  word  of  privity  in  law 

(n)  Gilb.  onRenU,66.  7.  Shfp.  Touch.  115  (i;  Cro.  Ellz.  SI7. 

(c)  Com.  D\%.  tit.  Rent.  (H.  5  )  (i^  Cam.  Dit.  til.   Rcp't.  fB.  i.) 

(0  2  Saund.  3CT.  S   C.    2Lev.   13.  SirT.  Rsyni  2l.i.  1  Vent.  1»8,  ICl.  2  Keb.  798,  8I'J    833, 
839                         {/)  Com.  T)i|.  tit.  Rent  (R.  .■».)  (f)  ibiM.  R  ^ 

;li3  Atk.  2»»^  ;   i  T    B.  fl».Cl.  WatW  I  Pei   J  f?   Bf    to;.  1  V  Wmi    ri5 

2(S 


jyu  Ucnt .;  reservation  oj.  [Chap.  V 111. 

requisite  to  Ihe  rcscivation  of  rents,  and  in  condition  ;  the  heir  being, 
in  reprcsenlalicn,  in  point  of  taking  by  inheritance,  the  game  person 
■oith  the  ancestor  {a). 

A  man  may  reserve  a  rent  to  himself  for  his  life  and  a  different  rent 

to  his  heir  {l>). 

If  there  be  two  joint-tenants,  and  they  make  a  lease  for  years  by 
parol,  or  deed-poll,  reserving- rent  to  one  only,  yet  it  shall  enure  to 
both.  But  if  the  lease  had  been  indented,  the  reservation  should  have 
liccn  "ood  to  him  only  to  whom  it  was  made,  and  the  other  sliould 
iiave  taken  nothing. — The  reason  of  the  difference  is  this :  where  the 
lease  is  by  deed-poll,  or  by  parol,  the  rent  shall  follow  the  reversion, 
which  is  jointly  in  both  lessors;  and  the  rather,  because  the  rent  being- 
something  given  to  the  joint-tenant  to  whom  it  is  reserved  in  retribu. 
tion  for  the  land,  lie  ought  to  be  seised  of  the  rent  in  the  same  n.anner 
as  he  is  of  the  la)id  demised,  which  is  equally  for  the  benefit  of  his 
companion  and  himself;  but  where  the  lease  is  by  deed  indented,  they 
are  estopped  to  claim  the  rent  in  any  other  manner  than  it  is  reserved 
by  the  deed,  becauce  the  indenture  is  the  deed  of  each  party,  and  no 
man  shall  be  allowed  to  recede  from  his  own  solemn  act.  Co.  Lit.  47. 
A.  Gill),  on  Iltnts,  63. 

So,  if  tv.o  joint-tenants  let  by  deed  to  A,  rendering  to  them  10s. per 
ann.  and  only  one  seals  the  deed,  the  demise  shall  be  but  of  a  moiety, 
rendering  only  5s. per  ann  (c). 

If  a  rent  be  payable  yearly  without  saying  "  during  the  said  term," 
yet  the  payment  must  be  made  every  year  during  the  continuance  of 
the  lease  (<•/). 

If  therefore  a  lease  be  made  for  years,  provided  that  the  lessor  shall 
pay  for  it  at  Michaelmas  and  Lady-dai/  10/.  by  equal  portions  "  during 
the  term,"  though  this  rent  is  not  made  payable  yearly,  yet  the  law- 
construes  it  to  be  so,  because  it  is  payable  at  the  two  feasts  during  the 
term,  and  then  consequently  it  must  be  paid  yearly  ;  for  if  there  be 
any  omission  of  the  payments  in  any  one  year  during  the  lease,  it  is 
not  paid  at  the  two  feasts  during  the  term  (f). 

So,  if  a  man  demise  for  five  years,  rendering  100/.  to  be  paid  by 
equal  portions  during  the  term,  it  shall  be  paid  yearly  though  that 
Avord  was  omitted  (/). 

If  a  lease  he  made  rendering  rent  at  two  usual  feasts  of  the  year, 
without  specifying  what  feasts,  the  law  construes  such  payments  to  be 
made  at  Michaelmas  and  Ladij-dcnj,  because  those  are  the  usual  days  ap- 
poiiited  in  contracts  of  this  nature  for  payments  [if). 

So,  if  a  man  grants  a  rent  of  10/.  to  another  payable  at  the  two 
usual  feasts  of  the  year,  this  shall  be  intended  by  equal  portions,  though 
not  so  mentioned  in  the  deed  ;  because  where  there  are  two  several 

[ri)  Hi.b.  130.  (h)  Com.  Dio'.  ui  ante.    Co.  Lit.  213.  b.  214.  a. 

Com.  Dig.  tit.  Kent  {B.  Z.)  (d^  Gilb.  on  Rents,  51.  (i)   IbiO.  60. 

^< ,  Cna.  Uij.  tit  Heut  (B.  a.)  (g)  Gilb.  ofa  Ueiits,  51. 


Seci.  /.J  lidit ;  nscnnlioii  <>J.  I«)l 

flays  appointed  for  i>iyni('nt,  it  is  the  mnst  vi\\\d\  construction,  tluil  a 
moiety  of  the  rent  .sli;ill  l»c  paid  at  each  il.iy  {n). 

If  a  ni;;n  make  a  lease  to  anotluT  the  Gth  ihy  of  August,  rendering 
yearly  the  rent  of  [\)s.  at  two  ternip  of  the  year,  viz.  at  ImJi/'iUui  and 
Mi< haclmj.:,  by  ecjiial  portion?,  thoni;li  in  this  case  by  the  appointment 
of  the  parties,  Ladi/-dny  be  the  first  term  mentioned,  yet  the  first  pay 
inent  shall  he  made  at  Michaelmas  ensuing  the  date  of  the  lease  ;  for 
without  sueh  tninspDsitlou  of  the  words  of  the  deed,  the  intention  of 
the  parlies  could  never  he  fidiilled,  because  the  rent  is  reserved  an- 
nually, and  the  lessor  would  lose  the  profits  of  one  half  year  if  the  rent 
was  not  payable  the  first  Mic/tadiuas  ;  ami  the  lessee  nnist  enjoy  the 
land  from  tiie  date  of  the  lease  to  tiie  first  Mirhnrimas  without  payini^ 
any  thine:;  <i"d  so  likewise  from  the  last  Ladi/'daij  of  the  terra  to  the 
expiration  of  it ;  because  though  the  rent  ended  in  .luruof,  yet  the  pay- 
ment was  not  to  be  made  till  the  Mi(  hachnaa  follow  ing,  before  which 
time  the  lease  expired  (A). 

So,  if  .-l  man  makes  a  lease  the  1st  of  Mnij,  reserving  rent  payable 
(juartcrly :  this  shall  be  intended  quarterly  from  the  making  of  the 
lease  ;  for  if  the  be!j;iiniing  of  the  quarter  should  be  construed  to  be  any 
other  day  than  the  date  of  the  lease,  the  lessor  would  lose  the  profits  of 
his  lands  for  some  time,  an'l  cousc(piently  not  have  quarterly  payment 
made  during  the  continuance  of  the  lease  (r). 

A  rent  was  reserved  half  yearly  from  Michaelmas  ;  an  action  brouglit 
for  half  a  year's  rent  ending  the  2.5th  day  of  .l/^trrA,  which  was  not 
lialf  a  year  from  Micharhnas  ;  and  the  rent  being  reserved  half  yearly 
without  mentioning  any  day,  there  must  be  a  full  half  year  befi^re  it  is 
due  ;  but  otherw  ise,  where  it  is  made  puyal)le  at  such  and  such  feasts, 
quarterly  or  half  yearly;  there  t  hough  tlie  quarter  or  half  year  in  reality 
be  not  then  expired,  yet,  as  to  the  reservation  ami  jiayment,  it  is  (r/). 

If  rent  be  reserved  quarterly  or  half  yearly,  each  aiiporlionmeut  of 
rent  is  a  distinct  debt  (r). 

Where  there  arc  special  days  of  payment  limited  upon  the  rrddnidwn, 
the  rent  ought  to  be  computed  according  to  the  rrddt  ndmu,  and  not  ac- 
cortling  to  the  habcnduvi  ;  but  w  here  the  reservation  is  general,  as  half 
yearly  or  quarterly,  and  no  special  days  are  mentioned,  tlicrc  the  half 
year  or  quarter  must  be  computed  according  to  the  habnidum  (/'). 

If  tenant  in  fee  makes  a  lease  for  years  to  be;rin  at  Michaelmas,  ren- 
dering 100/.  per  annum  at  Michaelmas  ^n<\  Ladi/-day,  or  w  ithin  ten  days 
after  every  feast  ;  it  seems  to  be  the  better  opinion  that  the  rent  is  due 
the  last  Michaclmas-dai/  of  the  term,  w  itlioiit  any  rca;ard  to  the  ten 
days  ;  for  the  reservation  being  animal,  at  the  t«o  feasts,  or  within  ten 
days,  it  shall  be  construed  to  be  at  the  end  of  every  ten  days  durim;  (he 
^<»r;/;,  as  most  agreeable   to  the  design  of  the  contract ;  and  therefore 

'»;  (:i:b  on  Hmte,  5l.  "'    Jl'M.  49-  (<^)  Ihid-  ^(^  ''*)^  Mod.  3'. 

r    2  Vent.  120.  rf)  S  I.d.  Iliyin.   «0.  I  S»lk.  HI.  t.  c. 


192  Rent ;  reservation  of.  [Cliap.  VIII. 

the  law  rejects  the  ten  days  after  the  last  feast,  because  the  term  ending 
at  Mchaclmns,  there  cannot  be  ten  days  after  it  during  the  term,  for 
payment  of  the  rent.  This  construction  is  the  more  reasonable,  be- 
cause to  give  the  lessee  his  election  to  make  the  last  payment  either  at 
Michaelmas  or  ten  days  after,  were  to  put  it  in  his  power  to  avoid  pay- 
ment of  the  last  half  year's  rent :  for  if  it  could  be  construed  not  to  be 
due  till  the  end  of  the  ten  days,  the  lessor  could  never  oblige  him  to 
pay  it,  because  then  the  term  would  be  ended  before  the  rent  became 
due  ;  for  the  addition  of  the  ten  days  was  only  to  enlarge  the  time  of 
payment,  but  not  to  prevent  the  payment,  or  to  remit  any  part  of  the 
rent  (a). 

If  a  man,  possessed  of  a  term  of  one  hundred  years,  make  a  lease 
for  fifty,  reserving  rent  to  himself  and  his  heirs,  this  rent  determines  at 
his  death  ;  for  his  heir  cannot  have  it,  because  he  cannot  succeed  to  the 
estate,  it  being  but  a  chattel  interest,  to  which  the  rent,  if  it  continues 
after  the  life  of  the  lessor,  must  belong  ;  and  the  executors  cannot 
have  it,  because  there  are  no  words  to  carry  it  to  them  (0).  [It  would, 
however  form  a  part  of  the  residuary  estate,  it  is  conceived,  antl  be 
assets  in  the  hands  of  the  executor  or  administrator  :  and  this  construc- 
tion is  w  arranted  by  Lord  Hale  expressly  in  the  case  cited.  For  a  term 
of  years,  being  but  a  chattel  real,  is  assets  in  the  hands  of  the  executor 
or  administrator  ;  and  if  such  be  the  nature  of  the  thing  demised,  the 
rent  reserved  upon  it  w  ill  of  course  accompany  its  principal,  and  not 
go  to  the  heir  (r)]. 

A^'here,  how  ever,  an  inheritor  reserves  rents,  upon  a  lease  for  years, 
this  shall  not  go  to  the  executor,  but  to  the  heir,  with  the  reversion; 
other  than  arrearages  of  it  behind  at  the  death  of  the  testator  (d). 

Therefore  where  the  lessor  died  upon  Michaelmas-daj/  between  three 
and  four  o'clock  in  the  afternoon,  before  sun-set,  the  rent  being  reserved 
payable  on  Michaclmas-chnjy  the  question  w  as,  Avhether  the  executor  or 
the  heir,  or  which  is  the  same,  the  jointress  of  the  lessor,  should  have 
the  rent  ?  It  w  as  decreed  that  the  rent  should  go  to  the  heir  or  jointress, 
because  at  the  time  of  the  death  of  the  lessor,  there  uasno  remedy  nor 
means  to  compel  the  payment  thereof  (c). 

Jpportiojnnent  of  rent. — At  common  law,  rent  cannot  be  apportion- 
ed, neither  can  a  rent-charge,  or  rent-seek  (/),  but  the  reversioner  be- 
comes intitled  to  the  accruing  rent  from  the  rent-day,  antecedent  to 
the  decease  of  the  tenant  for  life,  whose  representative  %vas  intitled 
only  to  the  arrearages  due  at  some  rent-day  before  the  death  of  the 
testator  or  intestate:  for  the  law  does  not  apportion  rent  in  point  of 
time,  neither  does  equity  {g). 

If,  therefore,  a  tenant  for  life  made  a  lease  for  years,  and  died  the 

fa)  2Ld   Raym   820.   1  Salk.  32.  Cro.  Jac.  227,  233.  (6)  Gilb.  ut  ante.  Gfi. 

(«)  I  Vtnt.  I6J.  Com.  Dig.  tit.  Rent  (B.  5.)  (d)  Went.  Ofl".  Kx.5,3. 

(t)  2f»alk    578.   I  Saurd.  287.  {/)  Co.  Lit.  p.  HI.  b 
Is)  I  Salli.  C5.  Cro.  £liz.  256.  1  P.  Wms  392.  2P   Wms.  ITG 


Soot.  I.]  Utnt ;  apportioumcnt  of.  IPJ 

day  hofore  tlic  rent  was  due,  (which  is  not  payJt'iIc  till  the  laft  moment 
of  the  <lay  on  which  it  is  expressly  reserved  in  tlic  h-ase,)  the  rent  was 
lost  l)()lh  to  the  exeentor  and  the  reversioner,  aiul  the  law  hcing  fo, 
equity  would  not  relieve  (r<). 

The  strict  adherence  to  this  rule  of  law  was  productive  therefore  of 
a  very  njanii'cst  apd  j^rievoiis  injustice,  'i'his  lu)wever  lias  heen  in  a 
great  dec:re('  remedied  hy  the  statute  II  (r.  2  c.  10  s.  15.  which  after 
recitinq;,  that  ^\'he^eas  where  any  lessor  or  landlord,  havinc^only  an 
estate  for  life,  in  the  lands,  tenements  or  hereditaments,  demised,  hap- 
pens to  die  before,  or  on  the  day,  on  which  any  rent  is  reserved  or 
made  payable,  such  rent  or  any  part  thereof,  is  not  by  law  recoverable 
by  the  executors  or  administrators  of  such  lessor  or  landlord  ;  nor  is 
the  person  in  reversion  intitled  thereto,  any  other  than  for  the  use  and 
occupation  of  such  lands,  tenements,  or  hereditaments,  from  the  death 
of  the  tenant  for  life  of  which  advantage  hath  often  been  taken  by  tlic 
under-tenants,  who  thereby  avoid  paying  any  thln*^  for  the  same:  enacts, 
that  Where  any  tenant  for  life  shall  happen  to  die  before  or  on  the  day 
on  w  hich  any  rent  was  reserved  or  made  payable  upon  any  demise  or 
lease  of  any  lantls,  tenements,  or  iiercditamerits,  which  determined  on 
the  deatii  of  such  tenant  for  life,  the  executors  or  administrators  of 
such  tenant  for  life  shall  and  may,  in  an  action  on  tlie  case,  recover 
of  and  from  such  under-tenant  or  under-tenants,  of  such  lands,  fvc.  if 
such  tenant  for  life  die  on  the  day  on  which  tlie  same  was  made  pay- 
able, the  whole,  or  if  before  such  day,  then  a  proportion  of  such  rent 
according  to  the  time  such  tenant  for  life  lived,  of  the  last  year  or 
quarter  of  a  year,  or  other  lime  in  w  hicli  the  said  rent  w  as  ;^rowing  due 
as  aforesaid,  makiUjj  all  just  allowances  or  a  proporlioiialjle  part  thereof 
respectively. 

In  a  leading  case  on  tlie  above  statute,  (in  which  Lord  Hnrclrirkr  in- 
clined to  extend  the  remedy  to  the  representatives  of  a  tenant  in  tail 
whose  lease  determined  with  his  life,)  the  facts  were  these  :  Tenant  in 
tail,  remainder  to  the  defendant  in  fee,  leased  for  years,  and  died  w  ith- 
out  issue  a  week  before  the  day  of  payment  of  the  half  year's  rent. 
The  lessee  at  the  day  paid  all  the  half  year's  rent  to  the  defendant.  The 
executor  of  the  tenant  in  tail  brought  his  bill  for  apportionment  of  the 
rent.  By  the  L.  C.  Hardnirkc  :  this  point  has  never  been  determined  ; 
but  this  is  so  strong  a  case  that  1  shall  make  it  a  precedent.  There  are 
in  it  two  grounds  for  relief  in  equity  :  the  first  ari<;es  on  the  statute  of 
the  II  (i.  2.  the  second  arises  on  the  tenant's  havini;  subniilted  to  pay 
tlie  rent  to  the  defendant.  The  relief  arising  upon  this  statute,  is  cither 
from  the  strict  legal  construction,  or  equily  formed  upon  the  rea.'^on  of 
it.  And  here  it  is  proper  to  consider,  what  the  mischief  was  iM'ibre 
Mie  act,  and  what  remedy  is  provided  at  conuiu  i:  law.     If  tenant 

(fij  2  r   w'mi.  i'-: 


194  lienl ;  apporlionmenl  of.         Chap.  VIII. 

for  life,  or  any  who  had  a  determinable  estate,  died  but  a  day  before 
the  r.  nt  reserved  on  a  lease  of  his  became  due,  the  rent  was  lost :  for 
no  one  was  entitled  to  recover  it.  His  representatives  could  not,  be- 
cause they  could  only  bring  an  action  for  the  use  and  occupation  ;  and 
that  would  not  lie  where  there  v.as  a  lease,  but  debt  or  covenant:  nor 
could  the  remainder-man  ;  because  it  did  not  accrue  in  his  time.  Now 
this  act  appoints  the  apportionini^  the  rent,  and  gives  the  remedy.  But 
there  are  \\\o  descriptions  of  persons  to  whose  executors  the  remedy  is 
given  :  in  the  preamble,  it  is  one  having  only  an  estate  for  life  ;  in  the 
enacting  part  it  is,  tenant  for  life.  Now  tenant  in  tail  comes  expressly 
within  the  mischief.  I  do  not  know  how  the  judges  at  common  law 
construe  it,  but  I  should  be  inclined  in  this  court  to  extend  it  to  them. 
I  should  make  no  doubt,  were  this  the  case  of  tenant  in  tail  after  pos- 
sibility of  issue  extinct ;  for  he  is  considered  in  many  respects  as  tenant 
for  life  only :  he  cannot  suiTer  a  recovery ;  he  may  be  enjoined  from 
committing  waste,  such  as  hurts  the  inheritance,  as  felling  timber  ; 
though  not  for  committing  common  waste,  being  considered  as  to  that 
as  tenant  in  tail.  Were  it  the  case  of  tenant  for  years  determinable  on 
lives,  he  certainly  must  be  included  within  the  Act,  though  it  says  only 
tenant  for  life;  it  would  be  playing  with  the  words  to  say  otherwise. 
These  rases  shew  the  necessity  of  construing  this  Act  beyond  the  words. 
Tenant  in  tail  has  certainly  a  larger  estate  than  a  mere  tenant  for  life  ; 
for  he  has  the  inheritance  in  him,  and.  may,  when  he  pleases,  turn  it 
hito  a  fee;  but  if  he  does  not,  at  the  instant  of  his  death  he  has  but 
an  interest  for  life.  Such  too  is  the  case  of  a  v.  ife  tenant  in  tail  ex 
provislonc  viariti.  Upon  this  point  I  give  no  alisolute  opinion.  As  to 
the  equity  arising  from  the  statute,  I  know  no  better  rule  than  this,. 
cjuitcis  scquitur  legem.  Where  equity  finds  a  rule  of  law  agreeable  to 
conscience,  it  ptu-sucs  the  sense  of  it  to  analogous  cases.  If  it  does  so 
as  to  maxims  of  the  common  law,  why  not  as  to  the  reasons  of  Acts  of 
Parliament  ?  nay,  it  has  actually  done  so,  on  the  statute  of  forcible 
entry;  upon  which  this  court  grounds  bills,  not  only  to  remove  the 
force,  but  to  quiet  the  possession.  That  act  requires  a  legal  estate  in 
possession  ;  this  court  extends  the  reason  to  equitable  in  interest.  Hut 
I  ground  my  oj)inion  in  this  case  upon  the  tenant's  having  submitted  to 
])ay  the  rent.  Fie  has  held  hia)self  bound  in  conscience  to  pay  it  for 
the  use  and  occupation  of  the  land  the  last  half  year.  He  paid  it  to 
Ihe  defendant,  which  he  was  not  boynd  to  do  in  law  :  and  in  such  case, 
l!ic  person  he  pays  it  to  shall  he  accountable,  and  considered  as  receiv- 
ing it  for  those  who  are  in  equity  entitled  to  it.  The  division  must  be 
that  prescribed  by  the  statute  ;  and  then  the  plaintiff  is  entitled  to  such 
a  [)n)portion  of  the  rent  as  accrued  during  the  testator's  life-time.  And 
accordingly  it  was  decreed  {a). 

(«}  I  Durn'g  .Just.  tit.  "  Db^reVs."    AirliK.  198.  s.  c.  ; 


;5CCt.   J.]  Rent  ;  npjioi  Inninunl  oj .  Il».» 

So,  rent  paid  to  rcccivtrs  h\  tcirmts  lioMiii-  iiiulcr  (Uiih.-i's  dclcr- 
minalilc  upon  tlic  decease;  of  tenant  in  tail,  who  ditil  witliont  it.Mic, 
>vas  afterwards  ipportioned  hetwecn  tlie  representative  and  the  rc- 
maincler-niun.  Hut  in  this  case  the  l-ord  ('liancellor  7'/jMr/o/rol)servcd 
that  the  ta-c  of  Pajrct  ami  d'ec  (al)i)ve  cited  from  Ihni  and  .-Imhlrr) 
seenicd  rather  to  be  a  decision  what  the  statute  ought  to  have  done, 
than  what  it  had  ilonc  :  hut  that  thcqncstiun  here  seenietl  to  turn  on 
another  t;round,  that  the  tenant  hoUlin^:  from  year  to  year,  or  from 
period  to  period,  from  a  guardian  without  lease  or  covenant,  cannot 
be  allowed  to  raise  an  im[ilication  in  his  own  favour  that  he  should 
hold  without  payin,j;;uiy  rent  to  any  body  (n). 

Thus,  by  the  statute  Jl  (!.  2.  rent  is  apportionable  where  it  has 
accrued  on  a  lease  (h'tenninabic  on  the  life  of  the  tenant  for  life. 
Still  however  tlu-  ml; id  rule  of  law  obtains  as  before  the  statute,  where 
the  e.'-tate  does  not  so  terminate,  but  continues  notwitiistamliM:;  the 
death  of  tenant  for  life,  as  w  here  it  is  under  a  power,  or  by  licence 
of  the  lord  (if  a  copyhold,)  or  not  pursuant  to  the  enabling;  statute 
32  II.  8.  in  case  of  a  tenant  in  tail  ;  so  that  in  either  of  these  cases 
if  the  party  die  at  any  time  before  the  accruing  rent  lias  become  pay- 
al)le,  his  representatives,  and  his  creditors,  lose  every  benefit  wiiicji 
they  would  have  derived  from  his  estate ;  and  the  rent  goes  to  the 
reversioner.  Such  being  the  case  ;  we  would  rccoimuend  the  parties 
concerned  to  attend  to  the  su^^u^estion  of  Lord  Ciiancellor  Conpcr, 
who  observed  that  the  gift  in  law  of  the  rent,  which  the  lessee  of  tenant 
for  life  olitained  previous  to  the  statute,  by  the  death  of  tenant  for  life 
in  the  middle  of  a  half  year,  might  be  t^uai'ded  against  by  reserving 
the  rent  weekly  [b). 

Quit-rent  will  not  be  apportioned  as  between  tenant  for  life  and  re- 
mainder-man ((). 

If  lessee  for  years  of  land,  rendering  rent,  accej)ts  a  new  lease 
from  the  lessor,  of  part  of  the  land,  which  is  a  sun-ender  of  this 
part,  the  rent  shall  be  apportioned ;  for  tiiis  comes  })y  the  act  of  the 
parties  (r/). 

If  a  man  leases  three  acres  for  life  or  years  rendering  rent  and  after 
grants  the  reversion  of  one  acre,  the  rent  shall  be  apportioned  (r). 

A  lease  was  made  of  land  and  a  Hock  of  sheep,  rendering  rent. 
All  the  sheep  died.  Several  justices  and  Serjeants  were  of  opinion 
that  the  rent  was  apportionable  and  many  others  that  it  was  not;  but 
all  thought  that  it  was  equitable  and  reasonable  to  apportion  it :  and 
altervvards  the  case  was  argued  in  the  readitjg  of  Moore  the  Lent  follow 

(a)  2  Br.  R.  659.  (h)  I  P.  Wm?.  59:.  (rl   10  Vci.  60 

y>  via.  AUr  til.  "Apportionment"  ("B.  J.  !:•  I'vi  Ihid  t. 


196  Bent  ;  apportiojwieni  of.         [Ciiap.  VIU. 

ing,  and  it  seemed  to  him  and  to  four  justice*,  tliat  the  rent  should  be 
apportioned,  inasmuch  as  no  default  was  in  the  lessee  (o). 

]f  a  man  being  seised  in  fee  o(  Blackacrc,  and  possessed  for  twenty 
years  of  Whttcacrc,  leases  both  for  ten  years,  rendering  rent,  and  dies, 
by  which  the  reversion  of  one  acre  comes  to  his  heir,  and  the  other 
acre  to  his  executor,  the  rent,  it  seems,  shall  be  apportioned,  because 
it  happens  by  act  of  law  (Jb). 

A  lessee  who  grants  or  assigns  part  of  his  estate  is,  notwithstanding, 
liable  on  his  covenant  to  pay  the  entire  rent,  for  he  cannot  apportion 
it ;  the  action  as  between  lessor  and  lessee  being  personal  and  upon  a 
mere  privily  of  contract,  and  on  that  account  transitory,  as  any  other 
personal  contract  is  (c). 

But  covenant  lies  against  the  assignee  of  the  lessee  of  an  estate  for 
a  part  of  the  rent ;  as  in  such  cases  it  is  properly  a  real  contract  in 
respect  of  the  land,  and  is  local  in  its  nature,  and  not  transitory  ;  and 
in  case  of  eviction,  the  rent  may  be  apportioned  as  in  debt  or  re- 
plevin (f/). 

V\  here  a  man  seised  in  fee  of  a  manor  holden  in  moieties  by  socage, 
and  knight's  service,  (since  abolished)  and  of  a  parsonage  appropriate, 
leased  them  for  an  entire  rent,  and  on  his  death,  devised  the  manor 
for  life,  remainder  in  tail  ;  it  was  held  that  the  remainder-man,  on  a 
surrender  to  him  of  the  estate  for  life,  might  distrain  on  the  lessee  for 
an  apportionment  of  the  rent  ;  and  that  a  bar  to  his  avowry  must 
shew  the  value  of  all  the  premises,  and  answer  the  rate  of  the  appor- 
tionment. So,  on  an  avowry  for  an  entire  rent,  if  the  plaintiH'  plead 
eviction  of  part  of  the  land  by  elder  title,  he  must  shew  how  much  in 
value  was  evicted  and  how  the  rent  ought  to  be  apportioned  (f ). 

Eut  a  lessee,  who  is  evicted  in  consequence  of  a  statute  acknow- 
ledged by  a  former  owner  of  the  estate,  cannot  be  sued  by  his  lessor 
for  an  ap[X)i'tionmcntof  the  rent  (/). 

So,  if  1  lease  lands,  reserving  20/.  rent  yearly,  and  at  the  end  of 
three  quarters  be  evicted,  the  lessor  shall  have  no  rent  ;  for  rent  shall 
never  be  apportioned  in  respect  of  time,  for  being  one  contract  and 
one  delit  it  rar.not  l)e  divided  and  annua  nee  'dcbitum  judex  non 
stpnrat  (^^).  ^Vlu'.re  there  are  two  parceners,  and  one  Mill  take  advan- 
tage of  a  forfeiture,  and  the  other  not,    there  must   bean  apportion- 

mtnt"(/0' 

For  by  entry  into  any  part  of  tlie  premises  demised,  the  rent  is 
suspended.  Eut  if  the  lessor  enter  by  virtue  of  a  power  reserved,  or 
even  as  a  mere  trespasser,  if  the  lessee  be  not  evicted,  it  will  be  no  sus- 
pension of  the  rent  (/). 

(,n)  Vin.Abr.Ut.  ".Apportionment"  (C.  10.)  (*>)  Ibid.  {\^  ;'..)  (c;  Cro.rHiz.n33, 

f37.  Douf.  1«C.  2  Ea.t's  il.  575.  '    (<i)  Ibid.  581.  (e;  Cro.  Eliz.  T7).  Cro.  Jac.  KO 

(J  )  Cro.  Eliz.2i5.  (g)  I  Salk.  C5.  (h)  Vin.  Abr.  Ut.  "  Af.joitionment"  ^A.  T"  ) 

1   :•■&:•.- IWJ.  (»■;  BjU.  N.  P«  V<i-   177.  Co^vp.  ilfi 


8ect.  II.J  Of  Taxes.  VM 

Rent  when  due — Ry  tlic  oM  hnv>  it  was  dcmaiidablc  and  payalilt: 
iH'foic  the  time  of  smi-PL't  of  tlie  day  whereon  it  was  iffir\c,!  ;  or 
anciently  the  day  was  accounted  to  hegin  only  from  fun-rising,  end  to 
end  iniint'diately  upon  suii-Kct  (tt). 

Rut  Lord  /Idtf  held,  that  althonti^h  llic  time  of  mim  M:t  u.is  llic  t'nie 
appointed  by  the  law  to  demand  rent  In  order  lo  t-ike  advantage  <»f  a 
condition  of  re-entry,  and  to  tender  it  in  order  to  r.ive  a  forieiture, , 
yet  the  rent  is  not  due  until  midnight  :  for  if  a  man  fi;*ii;ed  in  fre, 
makes  a  lease  for  years,  renderini;  ront  at  t!ie  fcist  of  St.  Jo.'ut  tie 
Baptist,  upon  condition  of  re-entry  for  non-payment  ;  now  tiie  Ifxsor, 
if  he  will  take  advantage  of  the  con<lition,  must  demari'l  it  at  sim-s-t ; 
yet  if  lie  dies  after  sun-set,  and  before  midnii^lit,  his  heir  shall  iix.  e 
this  rent  and  not  his  executors,  which  proves  that  the  rctd  is  not  due 
until  the  last  minute  of  the  natural  day  (A). 

A  diHercnce,  it  seems,  subsists  between  the  case  of  a  lease  undo 
by  tenant  in  fee,  or  under  a  power,  and  that  of  one  made  l)y  a  b '.re 
tenant  for  life :  in  the  latter  case,  if  the  lessor  lives  to  the  beginning 
of  the  rent-day,  at  which  time  a  voluntary  payment  of  rent  may  be 
made,  that  is  sufficient  to  entitle  the  executor  to  the  rent,  rather  tlian 
it  should  be  lost;  but  in  the  former  case,  by  the  death  of  t'lC  .>s.-.or 
before  tlic  last  instant,  the  rent  will  go  along  with  the  land  to  lii'u  in 
tlie  reversion  or  remainder,  because  being  j)ayable  on  tli^s'  d.ijs 
during  the  term,  the  lessee  has  till  the  last  inslatit  to  pay  his  r-rit,  md 
consequently  the  lessor  dyin;^  before  it  was  compleffcly  due,  his  lepre- 
sentativcs  can  make  no  title  to  it  (i). 

As  to  the  time  for  the  payment  of  rent ;  where  a  time  crtain  is  ap- 
pointed for  that  purpose,  neither  agent  nor  principal  is  bound  to  ntf  end 
at  any  other  time;  and  if  the  thing  be  to  be  uorw  on  a  day  certain, 
but  no  hour  of  the  day  is  set  down  wherein  the  same  shall  be  done 
in  this  case,  they  must  attend  such  a  distance  of  tijne  b-i-fore -Hin-^et, 
that  the  money  may  be  counted,  and  the  demand  should  be  m  uie  on 
tlie  most  notorious  part  of  the  prenu'^es  ((/). 

[See  also  "  Condition  to  ro-cutcr  on  no!i-i)ayment  of  rent."  ^o^t 
Chap.  X.  Sect.  II.] 


Section  IF.     Of  Ta.vc.<!. 

It  id  a  genial  principle  that  the  occupier  of  the  premises  is  !i  Idcto 
pay  all  parliamcntp.ry  taxes  and  parocliial  ralc^,  as  respects  the  riguls 
of  the  pulilio. 

^a;  Cr  l.;t.  O^a.  2B>.  Cot..  :1.  ('O  "•  ?•>''■''   -  '•  -'  '  5*»"-<J-  '^•'>-  '"• 

'-.)  6  U»c.  A..  ;••. 
27 


J 98  Of  Taxes  and  Purljj   iralls.         [Chap.  VIII. 

Thus  the  lan^l-tax  is  not  the  landlord's  tax  with  respect  to  the 
p  iblic,  though  it  is,  as  between  landlord  and  tenant.  In  fact,  the 
land  itself,  in  the  hands  of  tlie  occupier,  is  the  debtor  to  the  public  (a) : 
t!ie  land-tax,  therefore,  is  prima  fade  the  tenant's  tax,  because  all  the 
remedies  are  against  him  {b). 

The  land-lax  diflTers  from  the  poor's-ta::.  The  landholder  -.vho 
receives  the  rent  is  to  pay  the  land-tax  ;  but  the  poor's-tax  is  payable 
l»y  the  occupiers.  The  occupier  ought  to  be  rated  regularly  by  name: 
therefore  as  some  particular  person  cannot  be  fixed  upon  who  m-:iy  be 
proprrly  rated  as  occupier,  it  follows  as  a  nece^^sary  consequence,  that 
no  r;itecan  at  all  be  made  upon  the  premises  (r). 

The  land-tax  acts,  from  the  4th  of  IF.  ^  M.  c.  1.  s.  13.  and  the 
23th  G.  3.C.2.S.  IT.  tV-  3.3.  to  the  present  time,  direct  the  tenant 
to  pay  the  !ind-tax  in  the  first  instance,  and  to  deduct  out  of  the  rrnt 
so  much  of  the  rate  as  in  respect  of  the  said  rent  the  landlord  should 
and  oudit  to  pay  and  bear  ;  and  the  landlords  both  mediate  and  im- 
mediate, and  according  to  their  respective  interests,  are  required  to  al- 
low such  deductions. 

Under  a  covenant,  therefore,  in  a  Iniiding  lease,  by  the  tenant, 
to  pay  all  the  taxes,  except  the  land-tax,  the  landlord  is  to  pay  only 
the  o/f/ land-tax,  and  not  the  additional  land-tax  occasioned  by  the 
improvement  of  the  estate  ;  for  the  legislature  did  not  mean  that  the 
•whole  of  the  land-tax  hi  respect  of  all  the  rent  should  be  borne  by  the 
original  landlord,  but  each  was  to  make  that  allowance  in  proportioH 
to  the  rent  that  came  to  him  (d). 

Upon  the  same  principle  .i.  having  granted  a  building  lease  to  5. 
at  the  yearly  rent  of  71.  which  estate  B.  improved  and  afterwards 
underlet  at  5M. per  annum,  A.  was  held  liable  only  to  pay  the  land- 
tax  in  proportion  to  the  old  rent  (<'), 

So,  on  a  lease  in  which  rent  was  reserved,  to  1)e  paid  "  without 
any  deduction  or  abatement  whatsoever,"  it  was  resolved  that  as  the 
land-tax  act  enables  the  tenant  to  deduct  that  tax  out.  of  his  rent,  he 
has  in  all  cases  a  right  to  slop  it,  unless  there  is  an  express  agreement 
to  the  contrary. 

The  owner  of  a  quit-rent  shall  pay  taxes  only  in  proportion  to  Avhat 
tie  laful  pays  :  but  if  the  matter  has  been  examined  by  the  commissi- 
oners of  the  land-tax,  the  court  of  Chancery  will  not  re-examine  it  (/). 

\  house  w  ithin  the  limits  of  an  hospital,  apj)ropriated  to  an  olhcer 
of  the  hospital  for  the  time  being,  is  not  assessable  to  the  land-tax  (i?). 

i>iit  a  bill  in  equity  will  not  lie  for  a  tenant  to  be  relieved  out  of  the 

(o.    Doij;  TX.  [ir,5  )  (6,  ocoi,sfs  lioU's  P.  L.  273.  pi.  23T 

'c,  Cul.iecoti  37a.  2  Bur.  lOS.}.  (rf)  ;jT.  P..  377.  2  :^tr.   UVI. 

.«)  3  T.  H.  37S  (/,  1  !>.  Wins.  328.  (g)  I  II.  M.  It.  ijj. 


fc^Lct.  ll.j  (JJ    DiMs  (tint   rarl'i    Jl'iills.  mo 

arn^ais  ofirnt,  for  l.txps  wliir!;  lie  Ims  actiinlly  piid  nn  accuiinl  of  rent 
reserved  to  a  cliuri1\,  whicli  ajipearj-  lo  he  exempted  JVoni  faces  (^r). 

Tlie  act  of  tijc  rtli  f/.3.r.  37.  cxeni[)1iii:<  tlic  owner  of  certain  lanls 
cjiihaiiketl  from  llic  river  Tlvimrs  from  all  taxes  and  assessments  w  hat- 
soever,  iloetJ  not  exempt  tlie  oerii piers  of  honses  Ixiilt  on  such  lands 
from  the  paynient  of  the  house  a!id  \s  indow  duties  imposed  hy  stut.  .JS 
a.  .3.  c.  4'J  (/y). 

Houses  Ixiilt  on  htids  embank".]  from  the  'i'hn»u s,  pi;rsuant  to  stat- 
r  (1.  o.  r-.  M.  which  vests  tliose  laniis  in  th;;  hands  oi  the  owners  "  free 
fft)m  taxes,"  are  not  liable  to  the  i;eniral  1  md-t  :x  imposed  by  stat.  l^r 
G.  3.  though  such  act  is  coticeived  in  i^ennal  term?,  and  was  parsed 
snl»srf|non(ly  to  tlie  act  creatimj  tiie  exemption.  Nor  are  such  houses 
liable  to  the  rates  imposed  by  slat.  II.  (i..i.  r.  2\).  {(). 

Of  Pari !/  //;<//.».— IJie  statute  11' 6',  ;J.  r.  78.  is  "  An  Act  for  the 
furtlurand  better  re;;iilation  of  buildinL-s  and  parly-wills ;"  but  being 
very  voluminous,  we  rel«;r  the  nailer  lo  the  Ael  itself,  in  tlie  con- 
struction of  that  statute  Ejirc,  C.  J.  oliseived,  that  it  was  easy  to  see 
that  it  wa'^  an  ill-penned  law,  and  that  il5  u\eaning  n^u^  left  uncer- 
tain ((/). 

The  less^r  of  a  house  al  a  rack-rent,  (tliere  lieini^  no  other  person 
entitled  to  nnn  kind  of  rent)  v  lialjlc  to  contribute  to  the  expenses  of 
a  partywa.I  under  the  stalulc,  thouijh  Die  lessee  has  improved  the 
house  demised  [c). 

So,  if  a  lessee  of  a  hnw^c  at  a  rack-rent,  underlet  it  at  an  advanced 
rent ;  he  is  li-iltle  to  co.itribute  to  the  expenses  of  a  parly-'.^  ail  built  un- 
der the  statute  ;  nor  is  tlie  operation  of  the  Act  at  all  varied  by  any 
covenants  to  repair,  entered  into  between  the  landlord  and  his  tenaJit. 
In  this  case,  L/y/v,  G.  J.  sai'l,  I  think  that  it  was  intended  l)y  t  ic  I  'L^isla- 
ture  that  the  tenant  should  pay  a  moiely  of  tije  expense  to  the  \)erb  u 
building  the  wall,  and  reiuibmse  himself  by  deducting  the  amount  oiit 
of  the  rent  of  liis  mmediate  landlord,  leaving  it  to  him  to  make  his 
claim  on  such  otiier  persons  as  he  may  think  liable  :  that  appears  to  mc 
to  be  the  best  cjustruction  for  putting  the  business  in  a  practicabJe 
shope.  1  >honi(I  incline  to  that  opis'.ion,  even  if  it  were  made  otd  th.it 
the  covenant  on  the  part  of  the  tenant  [amon^;  the  citveuanls  on  titt 
jiart  of  the  lessee  was  one  to  make  "  all  needud  and  neeessdry  repara- 
tions and  amendmenls  whatsoever  ;"j  inchnled  this  case;  for  thouyli  the 
crmduct  of  the  tenant  mi.;ht  be  a  breach  of  covenant,  it  would  be  Ijtkr 
that  the  dar.jai^es  should  be  settled  in  an  action  of  covenant,  than  to 
l)reak  in  on  the  rules  established  by  tlie  statute.  1  know  of  no  way  of 
rxecutintj  this  law,  if  we  enter  into  all  llie  derivative  claims  of  dilVerent 
landlords:.      If  the  tenant  j)ays  the  money,  let  him  ri-imbursc  himself, 

'a)  1  P.  Wm^.   123.  n  (h)  B  T.   H.  U.X  i  1"    It.  2. 

d)  1  hoi.  k  Pol  jui.  .  ^  8  T  i:  *,'i!   V  r  i:-  ••c 


:I00  Of  Taxes  and  Party  Walls.     [Chap.  YIII. 

and  leave  the  other  parties  to  dispute  among  themselves.  And  BuUer  J. 
(\\  ho  entirely  agreed  with  the  C.  J.)  said,  There  are  three  parties  in 
this  business ;  the  man  who  built  the  wall,tbe  tenant,  and  the  tenant's 
immediate  landlord.  The  owner  of  the  adjoining  house  pursued  the 
directions  of  14  G^.  3.  c.  78.  which  gave  him  a  right  to  call  on  the  plain- 
tiii"  (in  nple'in)  for  a  moiety  of  the  expense;  that  being  settled,  how 
does  the  case  stand  between  the  tenant  and  his  landlord  ?  I  agree  that 
we  must  consider  whether  the  landlord  be  the  owner  of  an  improved 
rent ;  but  in  this  case  he  has  an  im})roved  rent,  since  he  receives  more 
than  the  person  oi  whom  he  took  the  premises  :  and  if  the  landlord  hfts 
the  improved  rent,  he  certainly  is  liable,  though  there  be  only  one  year 
of  the  term  to  come.  As  to  the  question,  whether  the  expense  can  be 
apportioned,  that  does  not  arise  here,  but  if  any  thing  could  be  found 
to  warrant  an  opinion  thrown  out  by  Lord  Mansjieldm  Stone  v.  Green- 
Ktll  (cited  in  3  T.  R.  461.)  that  the  parties  might  be  liable  to  a  ratea- 
ble proportion  in  some  cases,  it  would  tend  much  to  the  advaricemeni 
of  justice.  The  building  a  party-wall  is  certainly  a  great  improvement 
to  the  premises,  and  every  person  interested  in  the  fee  and  receiving  a 
benefit  from  it,  ought  to  contribute  (<7). 

It  Is  indeed  clear  that  the  owner  of  the  improved  rent,  not  of  the 
ground  rent,  is  liable  to  pay  the  expenses  of  a  party-wall  built  under 
the  statute  {b). 

Hut  where  the  tenant  of  a  house  covenanted  in  his  lease  to  pay  a  rea- 
sonable jhare  and  proportion  of  supporting,  repairing,  anJ  amending  all 
party-walls,  (St.  and  to  pay  all  taxes,  duties,  assessments,  and  impositions 
parliamentary  and  parochial,  "  it  being  the  iiitcntion  of  the  parties  that 
tlie  landlord  should  receive  the  clear  yearly  rent  of  GO/,  in  net  money 
without  any  deduction  whatever ;"  during  the  lease  the  proprietor  of  the 
adjoining  house  built  a  party-wall  between  that  house  and  the  hou«:e  de- 
mised, under  stat.  14  G.  3.  c.  78.  held  that  it  was  the  tenant,  not  the 
landlord,  who  was  bound  to  pay  the  moiety  of  the  expense  of  the  party- 
wall  :  for,  siid  Lord  Kcni/on,  the  covenants  in  the  lease  render  it  neces- 
s:!ry  to  co;isi(!er  which  of  the  parties  would  have  been  liable  under  the 
Act  of  Parliament:  modus  et  conucnfio  vincvnt  legcnu  Wc  collect  the 
intention  from  the  whole  of  the  instrument.  If  this  had  rested  itself 
merely  upon  a  covenant  to  pay  taxes,  8cc.  I  should  not  have  thought 
a  tenant  liable,  I  ut  here  is  a  covenant  that  the  landlord  sliould  have  the 
rent  clear  and  net.  A  covenant  is  always  taken  most  strongly  against 
the  covenantor.  I  can)iot  bring  my  mind  to  doubt  from  the  ^^  I-.ole  but 
that  the  tenant  should  i)ay  the  whole.  Grose  J.  This  is  as  if  Hie  land- 
lord had  reserved  a  clear  rent-charge  to  himself.  Laurence  J.  The  in- 
tention of  the  parties  was  that  the  landlord  should  have  his  rent  free 
from  any  charge.     It  is  not  necessary  to  decide  which  party  is  the 

<«)  1  Bos.  h  Pul.  303.  (6)  5  T.   R.   ISO. 


Sect.  IH.J  Of  f/it  Puors-Jhitts.  liul 

owner  of  the  improved  rent,  l.i  lihinc  J.  1  flpround  niypclf  on  tlic 
covenant  that  the  tmiints  should  pay  a  reasonable  proportion  oj  the 
party-wall  (^0. 

A  lessee  for  twenty -one  years  at  a  i)epper-corn  rent  for  the  firrl  half- 
year  and  a  rack-rent  for  the  rest  of  the  term,  who  hy  agreement  was  to 
put  the  premises  in  repair,  and  coven  voted  to  pay  the  land-tax  antl  all 
other  taxes,  rates,  assessments,  and  impo«^itinns,  having  as.sic,ncd  \\\^ 
term  for  a  small  sum  in  .i,'ross,  was  held  not  to  be  liii)le  to  pay  the  ex- 
pense of  a  party-wall,  cither  hy  the  provisions  oflljc  stat.  11  (i.  S.  c. 
78.  s.  4J.  or  the  covenant  ;  for  uhere  the  parlies  contract  for  a  IcakO 
at  rack-rent,  the  lainllord  iiithc  person  who  oii'^ht  to  hear  the  expense 
of  the  party-wall  (A).  So,  where  the  parties  stand,  as  in  the  principal 
case,  in  the  relalionof  landlord  and  tenant,  tiie  former  is  liable  im»ler 
the  Act  of  Parlianjcnt  to  pay  the  expense  ;  for  the  lec^isfature  intcmled 
to  throw  the  burden  on  the  lessees  of  buildin':;  leases,  iiy  w  horn  the  val- 
ue of  the  estates  is  c.oMbideraI)ly  improved,  and  wl"*  ;ii(»  rw.nii  mai'.e. 
under-leases,  reserving;  improved  rents  (r). 

If  however  a  large  sum  were  paid  fur  the  purchase  of  a  leiise,  the 
original  lessee,  thouuh  no  improved  rent  were  rcservcil  to  him,  would, 
it  seems,  be  lial)le  to  pay  tills  expense  wiliiinthe  Act  of  Parliament  (./). 

Tlie  three  months'  notice  rcrjuired  by  s.  38.  of  the  li  (i.  ^.  c.  TS.  i" 
necessary  only  where  the  person  who  at  the  time  when  it  is  necessary 
to  build,  A't.  is  liable  to  j)ay,  cannot  ai^ree  with  the 'MV'irr  ^^  t!:?  ail- 
joining  house  (r). 

The  penalty  of  K)/.  inflicted  by  s.  (ir.  of  the  statute,  fur  not  havinjj 
the  new  buildina;  surveyed,  is  recoverable  arainst  tiie  master  builder, 
vhere  the  re,i;u!ations  of  the  Act  arc  not  complied  with,  anc!  net  against 
the  proprietor  of  the  premises  (/  ). 


P,i:(Ti().\  III.     Of  llw  Poors-naU.^. 

The  foundation  of  tlie  Poor  Laws  was  laid  by  the  stat.  4>  A/...  . .  -. 
which  was  i>assed  for  the  best  of  purposes,  namely,  to  compel  the  i.lio 
to  be  industrious,  and  to  relieve  the  wants  of  the  jinfortunate,and  afford 
tlieni  those  comforts  which  they  arc  disabled  to  procure  fro.n  infirmity 
or  r.i^c:  from  neglect  and  alnitc  however,  its  provisions,  and  thc^c  ol 
many  other  Acts  passed  for  the  same  w  ise  and  benevolent  purposes,  arc 
ina.;reat  measure  frustrated. 

By  sect.  1.  of  the  slat,  of  Lliz.  it  is  enacted, « tliat  the  churchward- 
ens of  every  parish,  and  four,  three,  or  two  subttantinl  bouso-Iioldor*; 

fn)P.  FR,602.  C6)nT.  n.l58.  cFVi" 

(c)  4  T.  R.  130.  (/  >  3  Eir>.  R  -'-3 


202  Of  the  Poors-Rates.  [Chap.  YIII. 

there,  as  shall  be  thought  meet,  having  respect  to  the  proportion  and 
greatness  of  the  same  parish  and  parishes,  to  be  noininatcd  yearly  in 
JCaater  week,  or  \\  itlun  one  month  after  Easter,  under  the  hand  and 
seal  of  two  or  more  Justices  of  the  Peace  in  the  same  county,  wliereof 
one  to  be  of  tiie  Jiuorum,  dwelling  in  or  near  the  same  parisli  or  ciivi- 
sion  wlicre  the  same  parish  doth  lie,  shall  be  called  overseers  of  the 
poor  of  the  same  parish  :  And  they,  or  the  greater  part  of  them,  shall 
lake  order  from  lime  to  time,  by  and  with  the  consent  of  two  or  more 
such  Justices  of  the  Peace  as  is  aforesaid,  for  setting  to  work  the  chil- 
dren, of  ail  such  whose  parents  shall  not,  by  tlie  said  clmrchwardens 
and  overseers,  or  the  greater  part  of  them,  be  thought  able  to  keep  and 
maintain  them,  and  use  no  ordinary  and  daily  trade  of  life  to  get  their 
living  by  :  Ami  also  to  raise  weekly  or  otherwise  (6^  taxalioa  ofcvcnj  in- 
habitant, parson,  vicar,  and  other,  and  of  every  oceupier  of  lands,  houses, 
tithes,  impropriate,  propriations  of  tithes,  coal-mines,  or  saleable  un- 
der-woods,  in  the  said  i)arish,  in  such  competent  sum  and  sums  of  mo- 
ney as  they  shall  tiiink  ht)  a  convenient  stock  of  flax,  hemp,  wool, 
Ihj-ead,  iron,  and  other  necessary  ware  and  stuff',  to  set  the  poor  on 
work:  And  also  competent  sums  of  money  for  and  towards  the  neces- 
sary relief  of  the  lame,  impotent,  old,  blind,  and  such  other  among 
them,  being  poor,  and  not  able  to  work,  and  also  for  the  putting  out 
eiich  children  to  be  a})prcnticcs,  to  be  gathered  out  of  the  same  parish, 
according  to  the  ability  of  the  same  parish,  and  to  dp  and  execute  ail 
oilier  things  as  well  for  the  disposing  of  the  said  stock,  as  otherwise 
concerning  the  premises,  as  to  them  shall  seem  convenient." 

Sect.  4.  "  It  shall  be  la\^  ful,  as  well  for  the  present  as  subsequent 
churchwardens  and  overseers,  or  any  of  them,  l)y  uarraui  from  any  two 
such  Justices  of  Peace  as  is  aforesaid,  to  levy  as  well  the  said  sums  of 
money  and  all  arrearages,  of  every  one  that  shall  rciiisc  to  contribute 
according  as  they  shall  be  assessed,  by  distress  atui  sale  of  the  offender's 
goods,  as  the  sums  of  money  or  stock  which  shall  be  bcLhiJ  upon  any 
account  to  be  made  as  aforesaid,  rendering  to  the  par'ics  tne  overplus  ; 
and  ii'!  defect  of  such  distress,  it  shall  be  lawful  for  any  iwo  such  Jus- 
tices of  the  Pence  to  coniinit  him  or  them  to  the  cmviUioa  gaol  of  the 
County,  there  to  remain  without  l)aii  or  mainprise,  until  pdyment  of  the 
said  sum,  arrearages,  and  stock  :  And  the  said  Justices  of  the  Peace, 
or  any  of  them,  to  send  to  the  house  of  correction  or  common  gaol 
such  as  shail  not  employ  themselves  to  work,  being  appointed  tliercun- 
to  as  aforesaid  ;  and  also  any  such  two  Justices  of  Peace  to  coniiuit  to 
the  said  prison  every  one  of  the  said  churchwardens  and  overseers  who 
^hall  refuse  to  account,  there  to  remain  witliout  bail  or  mainprise,  until 
he  have  made  a  true  account,  and  satisfied  and  paid  so  much  as  upoa 
the  said  account  shall  l)e  remaining  in  his  hands." 

•Sect.  ly.  enacts  "  That  if  any  action  of  trespass  or  other  suit  shall 


Sect.  III.]  Of  tht  ri><,rs-}ialt,.  203 

linppeii  to  he  iitteniptcd  mid  l>r()iiu;lit  a^iiiiist  uny  person  or  peroii!*,  for 
taking  ot  ;my  distrtit^,  making  of  any  salt-,  or  any  another  lliinij  jIouc, 
by  authority  of  this  present  Act,  tlic  defenilant  or  (lifenilanls,  in  afiy 
snch  action  or  suit,  shall  and  nny  eitht-r  plead  not  'j;uilly,or  ol.ierwisc 
nuke  avowry,  coi^iiicance,  or  juslilication  for  thetaicini;;  oflhe?aid  dis- 
tresses, making  of  pale,  of  other  tiling  done  l>y  virtue  of  this  Act, 
allcdging  in  such  avowry,  ^-r.  that  the  saiil  dislrefS  sale,  trespass,  or 
other  tiling,  whereof  the  plainliiror  pliiiiti.ls  ronipl  lini'd,  was  \l.>ii<'.'  I>y 
autliority  of  this  Ait,  and  aeeor<liiig  to  the  tenor,  purport,  and  eJr  ( t 
of  this  Act,  without  any  expressing  or  rehearsal  of  any  other  matter  or. 
circumstance  contained  in  this  present  Art  ;  to  which  avowry,  C0i;ni- 
sance  or  justilicatioM,  the  plain!  iilFJiail  he  arlniitted  to  rcp!y.  That  the 
defendant  did  take  the  said  distress,  made  tlie  said  sale,  or  did  an/ 
other  act  or  trespass  supposed  in  hts  declaration,  of  ii is  o«n  wron.;, 
withoiit  any  such  cause  alledged  hy  IJ'.e  said  def(;ndiint ;  whereupon 
the  issue  i!i  every  such  action  shall  be  joined,  to  be  tried  by  verdict  of 
twelve  men,  and  not  otherwise,  as  is  accustomed  in  other  personal  ac- 
tions:^ And  upon  the  trial  of  that  issue  the  whole  matter  to  be  given  on 
both  parties  in  evidence,  according  to  the  very  truth  of  the  same,  and 
after  »uch  issue  tried  for  the  defendant,  or  nonsuit  of  the  plaint ilF  after 
appearance,  the  same  defentlant  to  recover  treble  damages,  bv  reason 
of  his  wrongful  vexation  in  that  behalf,  with  his  costs  also  in  tliat  part 
sustained,  and  that  to  be  assessed  by  the  same  jury,  or  \vrit  to  eiir(inro 
of  the  damages,  as  the  same  shall  require." 

By  stat.  17  G.  2.  c.  37.  waste  lands  improvcil  and  drained  shall  be 
rated  to  the  relief  of  the  poor  within  such  parish  and  place  which  lies 
nearest  to  snch  land  :  and  the  Justices  in  sicneral  quarter  sessions  may 
hear  and  determine  disputes  concerning  the  same,  and  cause  the  land 
to  !)e  fairly  assessed  in  such  parish  as  they  shall  think  proper,  x.  1,  2. 
^ — But  the  allotments  of  the  sessions  shall  not  a, feet  the  bounilaries  of 
parishes,  other  than  for  the  purposes  of  rating  such  laws  (a). 

On  inclosure  of  waste  in  the  j)arish  of  A.  on  which  the  land-holders 
of  the  parisii  of  li.  have  right  of  common  appurtenant,  the  allotments 
given  in  lieu  of  that  right  shall  be  assessed  to  tlic  poor  of  the  parish  of 
yl.  The  common  itsehV/;m.s7  common  was  certainly  not  rateable,  not 
being  the  subject  of  occupation,  but  if  at  all  it  must  Ijave  !>vcnasscsse«l 
as  an  accessary  to  the  piincipal  at  B.  {L). 

So,  where  the  inhabitants  of  one  parish  Ind  common  appendant  in 
cpitain  waste  grounds  which  lay  in  another  p:^.rish  ;  and  the  qi  »stion 
V as  whether  the  commoner  should  pay  taxes  for  this  and  sLiuM  ho. 
assessed  in  the  parish  where  the  waste  lay,  or  in  that  whtrel^  his  f:frnj 
lay  ^  it  was  held,  tliat  he  ou|^ht  to  be  assessed  where  his  farm  l.iy,,for 

<<>,■  1  riBBe«B"'.t.  - 


204  Of  the  Poors-Rates.  [Chap.  Vllh 

that  the  common  is  incident,  and  could  pass  by  grant  of  the  farm,  &c. 
So  that  it  should  be  considered  as  part  of  the  farm,  and  the  farm  to 
be  taxctl  the  hi^';her  (a). 

But  a  farmer,  it  seems,  is  not  rateable  for  the  stock  on  his  farm  ne- 
cessary for  its  manurance.  though  for  superabundant  riches  and  stock 
he  ou£?ht  to  be  rated  (A). 

The  poors-rate  is  not  a  tax  on  the  land,  but  a  personal  charge  in  re- 
spect of  the  land. — In  general,  the  farmer  or  occupier,  and  not  the 
laiidlord,  is  liable  to  this  tax;  for  the  poors  rate  is  a  charge  upon  the 
occupier  in  regard  to  his  possession,  and  not  on  the  lessor  in  regard  to 
the  rent  received  (r ). 

The  occupier  of  land  is  rateable  to  the  poor,  and  it  is  immaterial  by 
uhat  tenure  he  holds  it,  or  whether  he  has  any  title,  or  not  (d)  :  for  if 
atiisseisor  obtain  possession  of  laiKl,he  is  rateable  as  the  occupier  of  it. 
If  a  nun  does  not  live  within  a  parish,  he  is  to  be  assessed  according 
to  his  land  ;  but  if  he  live  within  the  parish,  he  is  to  be  rated  as  dwel- 
ling there  (e). 

The  Act  20  G.  3.  c.  17.  s.  19.  for  regulating  the  right  of  voting  does 
not,  in  the  form  of  assessment  that  it  gives,  i)revent  parishes  from  rat- 
ing landlord  or  other  persons  by  name  ;  or  they  inay  still  declare  their 
intentioii  to  rate  the  landlord  (/). 

But  payment  of  a  poors-rate  assessed  on  the  occupier  of  a  house  is 
not  in  itself  evidence  of  occupation  by  the  party  so  paying  [g). 

Every  inhabitant  ought  to  be  rated  according  to  the  present  value  of 
his  estate,  whether  it  continue  of  the  same  value  as  when  he  purchased 
it,  or  be  rendered  more  valuable  by  the  improvements  which  he  has 
made  on  it.  If  a  person  choose  to  keep  his  property  in  money,  and 
the  fact  of  his  possessing  it  be  clearly  proved,  he  is  rateable  for  that : 
but  it  he  prefer  using  it  in  the  melioration  of  an  estate  or  other  pro- 
perty, he  is  rateable  for  the  same  in  another  shape.  Suppose  a  person 
has  a  smail  piece  of  land  in  the  heart  of  a  town,  which  is  only  of  smali 
value,  and  he  afterwards  build  on  it,  he  must  berated  to  the  poor  ac- 
cording to  its  iniproved  value  with  the  building  upon  the  land. — In 
short,  in  whatever  way  the  owner  makes  his  estate  more  valuable,  he 
is  liable  to  contribute  to  the  relief  of  the  poor  in  proportion  to  that  im- 
proved estate  (/;). 

So  personal  property,  if  visible,  and  yielding  a  certain  annual  per- 
m:inent  profit,  is  ratealiie. 

It  may  be  stated,  therefore,  as  a  general  proposition,  that  the  irame- 

{ni   1  Salk.  169. 

('.}  1  CinsrsBott.  115.  p.  ISO,  151.  2  I.d.  Raj-m.  1201.  iBur.  2290.  Cowp.  452 
(c,  -J  Coi!Sfs  Bolt.  92.  pi.  \22.  {<l)  1  T.  R.  3*1.  7.  ibid.  SUJ,  C0& 

*     (e]  1  Coniit'a  Hon. 'J3  pi.  125.  ( /")  2  Ibid.  i;C8.  pi. 2li» 

(6)  "•  V.  Bil»tow,  Sitt.  St  Westm.  after  E.  T.  IfOd.  T.'e  .MSP 
(hj  e  T.  n.  15.0.  7T.  H.  biO. 


vSect.  III.]  Of  the  PuurS'Raks.  205 

diate  profits  of  land  [mnw  mine*,  cxcepteil)  are  a  proper  subject  of  a«- 
ficssinciit,  or,  to  speak  luori' correclly,  llja«  the  person  wlio  is  in  jxjsst;*- 
sionof  the  ininudiatc  profits  of  land  may  he  taxed  to  the  relief  of  tiic. 
poor  in  respect  of  those  profits  (*»). 

The  court  is  not  precluded,  by  the  Sessions  statin:;  iti  Ihet.aFC  "  l!i  it 
the  i>jrty  rated  is  the  occupiir,"  from  exaniinini;  into  the  propriety  of 
that  conchjsiori,  if  Sessions  also  f  talc  all  the  circumstances  of  tliecase, 
and  desiiv  to  have  the  opinion  of  the  siij)t;rior  Court  upon  tlic  whole  (A). 
Wiicre,  however,  the  Sessions  found  that  the  master  gunner  ViiSrciford 
was  the  "  occupier"  of  the  hattery-house  there,  wliich  was  the  properly 
of  tiie  Croivn,  and  from  whence  he  was  removeahic  at  pleasure  ;  it  was 
held  that  \.\\*i  fart  found,  of  his  l)eing  *'  the  occupier,"  prcrludcil  any 
other  (juestiou,  and  fixed  his  lial)ilily  to  l»c  rated  (r). 

\\'here  the  afUrmalh  of  a  nicadou  was  vested  in  Trustees  with 
power  to  let  the  same  in  pastures  for  cattle,  and  they  let  il  out  to  vari- 
ous persons,  l>ut  not  for  any  certain  teiui,  or  in  any  certain  proportions, 
at  so  much  a  head  for  horses,  Ar.  ;  it  w  as  held  tiiat  the  Trustees  must 
themselves  be  taken  to  t)e  the  occupiers  of  the  land,  and  were  c  ,;.se- 
quently  raleal)!c  for  tlic  same  (cl). 

In  the  case  of  St.  Lukc^s  Hospital,  antl  o{  Chelsea  Hospital,  the  olFi- 
cers  are  rateable  as  occupiers.  The  corporation  oi  London  are  not  lie 
facto  the  occupiers  of  St.  liarfholomcw's  Hospital  ;  the  poor  are  occupi- 
ers; but  they  are  not  rateable. 

The  ,£;eiieral  rule  of  law  must  be  followed,  which  is,  "  Tint  you 
nuist  find  an  occiipier.to  be  rated."  The  poor  people  caiuiot  be  rated 
at  all  :  the  servants  cannot  be  rated  as  occupiers ;  nor  can  the  corpora- 
tion 1)6  charged  as  occupiers  (r). 

For  property  is  not  rateable  to  the  poor,  unless  there  be  some  person 
in  the  beneficial  occupation  of  it  (/)• 

Thercfiue,  the  trustees  of  a  Quaker's  nicctini^-hou^e,  of  w hich  no 
profit  is  made  by  pews,  A'r.  are  not  rateable.  So,  a  ])erson  emphjycd. 
by  the  Philanthropic  Society  to  suj)erintend  the  children  at  annual  wa- 
j;;es,  under  an  agreement  lliat  he  shall  h.ive  a  '•  dwelhnj;-lu)U  •  free 
from  taxes,  SrrJ''*  with  certain  other  perquisites,  and  w  ho  may  be  dis- 
missed  at  a  minute's  warnitii;  on  receixjinu;  three  utonlhs'  wtij.'s,  is  not 
rateable  as  the  occupier  of  the  house  provided  by  the  ;:)Ocictv,  s?.p  'lav- 
ing  no  distinct  apartment  in  the  house  but  a  bed-c.ianiber,  aiul  her 
family  not  beinu;  allowed  to  live  there  (j^). 

But  the  occupiers  of  a  charitable  found  it  Ion  in  the  uctual  occu:;atian 
of  the  aims-iiou'<j  and  liods  for  their  o\wi  Ij'Ttefit,  in  t'lc  iii.uiuer 
prescribed  by  the  rules  of  the  constitutio.i,  and  lia')!e  to  be  JisaUistd 

jn>  :  4    ni.  2«0.  (fc)  5  T.  R.  ;?7.  (O  3  T.  11.  40T. 

(ti;  !3  East  U.   15J.  C«)  4  Bur.  3i39     3  Pur.   10.'3.  1063.     1  Bl.  R.  3*0.  I   « 

-[()  ♦T.  n.  rjo.  (t>  5  T.  K    -».  Ibid.  i37. 


206  Of  the  Poors-Raits.  [Cliap.  VIII. 

for  any  breach  of  such  lulc?,  are  rateable  in  respect  of  siicli  occupa* 

Therefore  the  master  of  a  free-school,  appointed  by  the  minister  and 
inhabitants  of  the  parish  under  a  charitable  trust,  whereby  a  house, 
garden,  A'r.  were  assigned  "  for  the  habitation  and  use  of  the  master 
and  his  family,  freely  without  payment  of  any  rent,  income,  gift,  sum 
of  money,  or  other  allowance,  whatsoever,"  for  teaching  ten  poor  boys 
of  the  inhabitants,  is  rateable  for  his  occupation  of  the  same  :  for  it  is 
not  like  the  case  of  an  exemption  Ijy  Act  of  Parliament,  by  which  the 
legislature  had  a  right  to  bind  every  person  ;  for  here  the  party  was  ap- 
pointed by  deed,  and  only  those  Mho  are  parties  to  a  deed  are  bound 
by  it  (b). 

A  corporation  seised  of  lands  in  fee  for  their  own  profit  are  w  ithin 
the  meaning  of  stat.  43  Eliz.  c.  2.  inhabitants  and  occupiers  of  such 
lands,  and  in  respect  thereof  liable  in  their  corporate  capacity  to  be 
rated  to  the  poor  (c). 

But  the  possessions  of  the  Crown  or  of  the  public  are  not  rateable  tff 
the  relief  of  the  poor  :  and  as  to  public  buildings,  those  are  such  as  are 
applied  to  public  purposes  (c/). 

A  warehouse  may  be  rated  to  the  proprietor  or  occupier  according  ta 
the  use  to  which  it  is  applied.  If  it  be  left  for  instance  to  the  excise  or 
custom-house  for  public  purposes,  the  burthen  must  be  borne  by  the 
proprietor  :  but  if  it  be  afterward  converted  to  a  private  use,  the  occu- 
pier of  it  will  be  liable  to  the  rates  (e). 

Therefore,  stables  rented  by  the  Colonel  of  <\  regiment,  by  order  of 
the  Crown,  for  the  use  of  the  regiment,  are  not  liable  to  be  rated  (/). 

But  persons  holding  houses  or  lands  under  the  Crown,  or  under  any 
hospital,  if  for  their  own  separate  benefit,  are  liable  to  be  rated  (^). 

The  ranger  of  a  royal  park,  therefore,  is  rateable,  as  for  inclosed 
lands  in  the  park  yielding  certain  profits. — But  he  is  not  rateable  for 
the  herbage  and  pannage,  which  yield  no  profit  {h). 

Tolls  directed  by  Act  of  Parliament  to  be  applied  to  public  purposes 
were  held  not  to  be  rateable  (i). 

But  lands  purchased  by  a  company,  and  converted  into  a  dock,  ac- 
cording to  Act  of  Parliament^  which  declares  that  the  shares  of  the 
proi)rietors  shall  be  considered  as  personal  property,  are  rateable  in 
proportion  to  the  annual  profits  (/r). 

An  exemption  in  a  private  statute  in  12  Car.  2.  of  lands  given  to 
charitable  uses  "  from  all  jjublic  taxes,  charges  and  assessments  what- 
soever, civil  or  military,"  extends  to  the  poors-rate  (/). 

(fi)  )  KasfhTl.  584.  (6)6  T.  R.333.  Cc)  Cowp.  73,  83,84. 

tjg.         (d)iT.  n.  :t7i.     2  Bos.  k  rulJ.  129.  .  fe)  1 T.  R.  ?.  (/)2T.R.375. 

tg)-^r.  n.  .i'j7.  (A;  1  T.  n.  338.  2  h.  bi.  u.  255.  u)  1  'i'  R-  700 

'«-;  I  T.  R.  2IU.  (0  3T.   U.  G02 


Sect.  HI.]  Of  Ifu    rnors- Rales.  207 

The  masters  in  chancery  arc  not  r.ilraMc  as  occiijiicrs  of  their  respec- 
tive apartments  in  Soxtthampton  livUdiu-'s  under  the  I'avini;  Act  1 1 C/.  ,\. 
c.  22.  for  they  are  for  public  piirpoMs,  and  the  iua.'^lcrs  liave  no  indivi- 
dual benefit  in  them  (.t). 

If  tlie  owner  of  a  house  occupy  part  of  it,  lie  is  liable  to  be  rated  for 
the  whole  ;  utdrss  there  l)e  a  dislinrt  orcnpp.tion  of  the  rest  by  ?onu' 
other  person  {0). 

Houses,  shops  and  sheds  uhicli  render  an  annual  revenue,  arc  ratea- 
l)lc  to  the  poor  (r ). 

A  house  and  ene;ine  for  cardinu;  cotton,  wliich  are  rented  as  one, 
entire  subject,  and  described  by  the  j;cneral  name  of  "  an  engine- 
house,"  may  be  rated.  So  may  t!ie  profits  of  a  weighing- machine* 
house  (f/). 

A  person  entitled  to  toll  (in  and  farm  dues  (which  are  certain  por- 
tions of  the  tin  raised  by  the  adventurer  in  the  tin-mines)  is  liable  to 
be  rated  in  respect  tliore<)f  (r). 

Lead-mines,  it  has  been  lu:Ul,  arc  not  r:ite;il)Ie  to  the  poor.  But  a 
lessee  (under  the  crown)  of  lead  mines,  is  rateable  for  the  profits  arising 
from  lot  and  cope,  which  are  duties  paid  him  by  the  adventurer  with- 
out risk  on  his  part  {  /'). 

The  lessee  of  a  coal-mine  lias  even  been  held  lo  be  ratcal)le,  though 
he  derived  no  property  from  the  mine ;  the  mine  being  ratcalde  property. 
If  the  jiropcrty  be  rate;iblc,  and  the  party  rated  be  in  the  occupation  of 
it,  the  Court  cannot  c.vauiiue  any  farther  and  enquire  whether  or  not 
the  tenant  has  made  an  unprofital)le  bargain.  Suppose  a  landlord  makes 
so  hard  a  barqain  with  his  t(;nant,  tliat  the  latter  deri\es  no  benefit 
from  the  farm,  must  not  the  tenant  be  rated  to  the  poor  ?  The  landlord 
certainly  is  not  liable  {i(). 

So,  a  slate-work,  (or  as  it  is  improperly  called  a  slate  mine)  is  ratea- 
ble to  the  poor  (/»). 

Linen  works  arc  rateable  in  the  hands  of  the  occupier  ;  though  there 
t)e  risk  and  expense  in  the  working,  and  the  profits  be  uncertain  (/). 

The  objects  of  a  eharital)lc  foundation  in  the  actual  occujialion  of 
the  alms-house  and  lands  for  their  own  benefit  in  the  manner  prescrilied 
by  the  rules  of  the  constitution,  and  liable  to  be  dischara;ed  for  any 
breach  of  sucli  rules,  are  rateable  in  respect  of  sucli  occupation  (/r). 

\Vhere  J.  having  granted  to  li.  a  lease  for  years  of  way-leaves  (for 
the  piupose  of  carrying  coals,)  and  the  liberty  of  erecting  bridges,  and 
levelling  liills  over  certain  lands  ;  B.  made  the  waggon-ways,  inclostd 

'n)  2  Bo».  it  Pull.  II'.'                      (6)  4  7    H.   177.  ff'   1  Cni'"'.  Bolt.  Hi.  pi.  U4. 

id)  I  T.  R.  727.                           [t,  3  T    K    *C0.  'f)  1   "1    H.  3»9.  Cowp.  ill 

S>  5  T.   K.  iUo                              K    3  Eue»  11    IS  I  'S-l'-i   n.  »0J. 
J)  IWJ   i«« 


208  Of  the  Poors-Hates,  [Chap.  VIII. 

them,  thereby  excluding  all  other  persons,  erected  bridge?,  and  built 

two  houses  on  the  lane  for  his  servants  ;  B.  was  held  to  be  liable  to  be 

rated  to  the  poor  for  «  the  ground  called  the  waggon-way  {a). 

But  a  mere  easement  is  not  ral  cable.     Therefore,  a  jiarty  who  has  an 

exclusive  right  to  use  a  way-leave,  paying  so  much  per  ton  for  the  goods 

carrif.d  over  it,  is  not  liable,     ^unre.  Whether  the  owner  of  the  land 

vho  receives  a  profit  for  such  way-leave,  is  not  liable  to  be  rated  for 

sucli  an  increase  of  value :  for  it  is  not  a  grant  of  the  profits  of  the 

land  (/;). 

The  proprietors  of  tithes  are  liable  to  be  rated  ;  therefore  fish  being 

tithcable  by  custom,  such  tithe  is  rateable  :  for  the  legislature  intended 
that,  when  rates  are  made  for  the  relief  of  the  poor,  every  person 
should  contribute  according  to  the  benefit  which  he  receives  within  the 
parish.  Ilere  the  parties  receive  a  certain  benefit  arising  from  the  tithe 
of  fish  in  this  parish,  and  run  no  risk  w  hatever.  To  say  that  only  pro- 
perty which  is  visible  should  berated,  is  carrying  the  rule  of  exemption 
too  far  ;  for  oblations  and  other  oiierings,  which  constitute  the  recto- 
rial or  vicarial  dues,  are  rateable  (c). — If  a  rector  makes  a  verbal  lease  of 
hi?  tithes  for  a  year,  and  the  lessee  let  the  tithes  to  the  respective  land- 
holders for  sixpence  per  acre  more  than  he  is  to  pay  the  rector,  the  lessee 
.is  the  occupier  of  the  tithes,  he  having  them  in  such  a  manner  as  to 
make  a  profit  of  them  ((/). 

A  sum  of  money  made  payable  by  the  ov.ners  of  lands  in' lieu  of 
tithes  by  Act  of  Parliament,  with  a  clause  of  distress  annexed,  is  liable 
to  the  poors-rate  :  for  it  is  a  mere  composition  for  tithes,  which  Mere 
before  subject  to  the  jioors-rate  ;  and  the  superadding  a  power  of  dis-' 
tress  does  not  turn  it  into  a  rent,  but  rather  proves  the  contrary  ;  for  if 
it  were  a  rent,  the  distress  would  be  incident  to  it,  \\  ilhout  any  spe- 
cial provision  in  the  Act  (r). 

So  payment  in  lieu  of  tithes  settled  under  a  compromise  between  a 
parson  and  a  parish,  and  confirmed  by  Act  of  rurliament,  are  rate- 
t>le(/). 

A  parson  is  rateable  for  his  tithes  as  the  occupier  of  a  tenement ;  so 
is  a  vicar  ;  and  the  Jial)ility  is  not  removed,  although  he  lets  his  tithes  to 
the  parishioners  ;  and  the  tax  must  be  upon  the  parson  and  not  upon 
the  lessee  of  his  tithes  (^). 

Quit-rents,  and  other  casual  profits  of  a  manor,  are  not  rateable. — 
But  ground-rents  are  rateable  {h). 

If  A.  rent  a  quantity  of  land  together  with  a  mineral  spring  arising 
therefrom,  at  a  gross  yearly  rent,  he  is  rateable  to  the  poor  for  the  whole 

•a)  7  T.R.5rt8.  (h)  3T.  R.  31.  (c)  3  T.  R.  38S.  (d)  8  Mod.  S2. 

♦«)  -i  lil.  R.  12J2.  (/)  Catd  19R.  I  Con.sfs  Bott.  164.  pi.  184 

<jg)  Ibid.  116.  p.  152. 117.  pi.  I.M.  n3.pl.  l.-il.  St  in  n. 

(A)  1  Bl.  n.  31£.  I  Eaafall.  585.  1  Const'e  Bott.  115.  p!.  M7.  Cowp.  6in. 


Sect.  III.]  Of  Ihf  Poors-Jialts.  209 

of  siicIj  ronl,  tlioii^h  the  aimual  valiit  of  llu-  more  liind  is  only  in  pro- 
portion of  two  to  ci!;hl  of  the.  rcFcrvcd  rrnt. 

Whcthtr  or  not  rtiimhcrs  in  :in  Inn  of  Cunrl  arc  rutcaMo  is  umic- 
termincd  :  the  fact  of  their  l)t.ii^  cvtra-paroclnal  cloi's  not  seciu  to  lic  a 
auHicient  groiMiil  of «  viMnpiion  ;  for  if  il  wen-,  l!:i;  poor  of  extra- jwiro- 
chial  places  WiiuUi  l)e  cl<pnval  of  the  heneiil  of  iIm;  -latute  of  j:/i:nl><lh 
which  has  been  c.)n>lriieti  to  exlcntl  to  Ih.in. — However,  nio-t  ol  Ilic 
old  colleijcs  htint^  extra-parochial,  are  nyon  Ihal  ivround  not  r.itc- 
:\\Av.  (a). 

The oversecr^aiul  church  warden.-  nny  mal.e  a  p  n/i--t..te,  wilhoulth'; 
concurrence  of  the  parif-liioncrs:  and  if  a  rate  he  rieccssary,  (hey  may 
be  compelled  by  vHinduntus  to  make  it.  Hat  stich  rate  is  not  !>indin^ 
till  allowed  by  two  Justice^  out  of  i-ei^sion^ ;  for  the  rc^Mons  ( miut  on'.er 
anoriijinal  rate  to  ije  made,  and  llie  allowance  I)y  the  Jiisticet-  is  con i- 
pellabie  by  mandamus  (/»). 

How  to  be  mddc  ami  raised. — A  rate  Ijcin-^  made  by  tlic  rlnn-clnvar- 
dens  and  overseers,  it  is  proclaimed  in  the  cluircli,  when  it  becomes  for- 
mal and  public.  If  any  one  feel  agu;rieved  ])y  tlie  making;  of  the  rale 
(he  need  not  be  damnified  by  the  rate;)  lie  nuist  a})pe:l  In  the  tiext 
sessions;  and  if  any  ])oini,  oflaw  aris^;  ori  hearing  the  appi;:!,  may  be 
removed  into  tJie,  Court  of  iving's  Cencii,  by  tcrliorariy  in  oider  to  !»e 
determined. 

The  etat.  17  (!.  2.  c.  3.  s.  1.  after  reciting  tiiat,  Whereas  gn>at  ircon- 
veniencies  do  often  arinc  iti  cities,  towns  corpoiate,  parishes,  townships, 
an<l  places,  by  reason  of  tlie  luilimitetl  power  of  the  cfinrchwarden  and 
overseers  of  the  poor,  v.  Im  iVcqaenlly  on  frivolous  j)rctenccs,  and  for 
private  ends,  make  unjust  a.-id  illegal  rates  in  a  sccie.t  and  cinnilcstine 
nnniier,  contrary  to  the  true  intent  aiid  meaning  of  a  statute  made  ir\ 
the  forty  and  third  yea;- of  the  reign  of  fjiKcn  IlliznlKth,  intitultd, 
*♦  An  .vet  for  tlie  ilelief  of  the  I'oor  ;"  enacts.  That  the  churchward- 
ens and  overseers,  or  other  jtersons  aulhoiized  to  take  care  oi'  the  \y>ox 
in  every  parish,  township,  or  place,  shall  give  or  cause  to  he  civen  ind> 
lic  noticf  in  the  church,  of  every  rate  for  the  relief  of  tlie  jjoor,  alloxved 
by  the  Justices  of  the  peace,  the  next  Sunday  after  the  •  imc  shulj  have 
been  so  allowed  ;  and  that  no  rate  sliall  be  estei'med  or  r«-p;ited  valid 
or  sufliciejjt,  so  as  to  collect  and  raise  the  same,  ui.i'  itice  shall 

have  been  given. 

if  a  ,;i<ors  rate  I)C  not  publisiied  in  tlie  cliurcii  <m  the  .V.///f/'f-v  /.  t. 
after  it  is  allowed,  it  is  a  nidlity ;  and  payment  under  it  cannot  be  en 
forced,  though  there  be  no  appeal  to  the  sessio!!'.  Supposing  the  par 
ish  ofllcers  were  to  give  notice  of  the  rat-:  at  sanu;  other  p.iblic,  place  in 
the  parish,  it  would  not  be  sufficient,  thiMig'i  it  may  be  equally  notorious. 

n)  2  Coin.  H.    6.-14. 

«;  2  \.t  Ct,  :n  '.0'3.  :  Ihid.  79C.  I  Birniird.  13T.  1  Bl   B.  «1T. 


210  Of  the  Poors- Rates.  [Chap.  VIII. 

The  omission  is  a  radical  defect  in  the  rate  Itself  which  iictbing  can 
cure  {a). 

In  an  action  of  trespass  by  a  person  whose  goods  were  distrained  for 
non-payment  of  the  rate,  the  publication  of  the  rate  under  the  etat.  17 
G.  2.  c.  3.  must  be  proved  (6). 

The  superior  court  cannot  enter  into  the  inequality  of  the  rate,  un- 
IcES  it  appear  to  them  to  be  self-evidently,  necessarily,  and  unavoidably 
unequal :  they  cannot  presume  it  to  be  so  (c ).  The  Justices  at  the  ses- 
sions are  the  proper  judges  respecting-  the  equality  or  inequality  of  the 
rate  (d).  The  distinction  between  orders  of  Justices,  and  special  ver- 
dicts ha6  been  long  established :  in  the  latter,  Avhere  it  concludes  gene- 
rally, the  whole  case  must  appear  upon  record  ;  but  the  very  reverse  is 
the  rule  which  obtains  in  the  case  of  orders  of  Justic^:.^,  for  the  Court 
will  intend  every  thing  to  be  right  which  does  not  appear  to  be  other- 
wise, and  they  will  not  entertain  any  doubt  upon  a  subject  upon  which 
the  Justices  did  not  (e). 

By  Stat.  \1  G.  2.  c.S.  tlie overseers  shall  permit  the  inhabitants  to 
inspect  every  rate  at  all  seasonable  times,  on  payment,  of  1*.  and  shall 
en  demand  give  copies  thereof  to  any  inhabitant  at  the  rate  of  Od.  for 
twenty-four  names  :  on  penalty  of  :20/.  for  refusal.  And  true  copies 
of  all  rates  for  the  relief  of  the  poor  shall.be  entered  in  a  book  within 
fourteen  days  after  any  appeal  from  any  such  rate  is  determined,  which 
the  overseers  shall  attest  by  their  names  thereto  ;  which  book  shall  be 
kept  for  public  perusal,  s.  2,  3,  13. 

And  overseers  neglecting  to  execute  this  Act,  shall,  if  no  Jother  pe- 
nalty is  provided,  forfeit  to  the  poor  not  exceeding  5/.  nor  less  than  20s. 
s.  1  i.  And  where  there  are  no  churchwardens,  overseers  may  perform 
all  matters  relating  to  the  poor.  s.  lo. 

Where  a  statute  says  that  a  company  shall  not  be  liable  to  any  rates 
which  had  not  usualli/  been  assessed,  it  only  means,  that  they  shall  not 
iiave  any  other  A7"/2fi  of  rate  imposed  on  them  than  those  which  were 
then  levied,  but  does  not  fix  the  proportion  of  the  rate  (/). 

Where  to  he  collected. — A  person  shall  be  rated  for  profits,  where 
they  become  due,  not  where  they  happen  to  be  received  C^). 

Where  a  navigation  ran  from  y/.  to  B.  through  several  intervening 
parishes,  and  the  tolls  for  the  whole  navigation  were  collected  in  those 
tno  parishes,  it  was  holden  that  they  might  be  assessed  in  the  two  pa- 
rishes for  the  whole  amount  according  to  the  proportion  collected  in 
each  (Jk). 

A  barge-way  and  toll-gate  in  the  hamlet  oiJlnmptonwick,  purchased 
by  the  city  of  London,  by  virtue  of  stat.  G.  3.  c  18.  (for  completing 
the  navigation  of  the  Thames,  and  empowering  the  city  to  levy  tolls  and 

(«)  \  T.  R.  00".  (tj  8  T.  U.  fiM.  (c;  4  Bur.  2l94.  {d)  6  T.  R.  5f,5,  6. 

''    -  '•■'■r. '-'32,  375.  (f)  2  T    R.  S60.  (q)   Ibi-I.  (h)  Ihid. 


Stct.  in.]  ^!f  ffit    Pours- Rates.  211 

duties  towards  the  charges  of  iiavii^alion,)  was  hchl  to  lie  rateal.l  for 
such  tolls-  as  hcraiiic  due  tlirrc,  iiotuithslaiuliiii;  the  tolls  wercc'jii  ol- 
cd  in  a  dilicrfiit  parish  («). 

The  grantee  of  the  navigation  nf  the  river  Ousc^  is  rateal)lc  to  the 
poor  of  Carddiii'ton  in  respect  to  the  tolls  arising  there,  though  he  him- 
self resides,  and  the  tolls  are  collected,  elsewhere  (A). 

So,  where  a  Navigation  Act  cnipoucred  the  proprietors  to  take  -^ 
much /«T  mile /jrr  ton  for  all  goods  carried  along  the  canal,  it  w.is 
holdcn,that  they  were  rateahic  to  the  poor  for  the  t4)lls  in  tin;  diiierent 
parishes  where  the  tt)ll6  Ixcanie  due,  that  is,  where  the  leepectivc 
voyages  finished,  though  for  their  own  con viniejice  they  uercauth'ri- 
zed  to  ro//r(Mhe  tolls  where  they  pleased,  a))J  did  in  fact  collect 
them  in  other  pnrishes  (r). 

So,  where  by  a  Navigation  Act  tiic  proprietor  was  entitled  to  a  toil 
of  ii'.  per  ton  for  goods  carried  from  A.  to  li.  or  from  7i.  In  ./.  and  In 
a  proportionable  mm  for  any  less  distance,  and  was  also  ena!)lril  to  ap- 
point any  place  of  collect  i^n  ;  it  was  holden  that  the  tolls  lor  goods  car- 
ried the  whole  voyage  from  A.  to  li.  wererateal)le  in  B.  though  in  firt 
they  were  collected  i.'.  a  parish  between  A.  anil  U.  because  tlic  tolls 
become  due  where  the  voyage  is  com])leted  (</). 

County  Justices  cannot  rate  a  parish  within  their  jurisdiction,  ;/j  rM 
of  another  parish,  lying  within  a  borough  \vliich  has  an  exclusive  juris- 
diction, though  w  ithin  tlio  ramc  hundred  and  county  {c). 

By  Stat.  17  U .  2.  r.  38.  5.  12.  it  is  enacted.  That  where  any  person 
or  persons  fhall  come  into  or  occupy  any  liouse,  land,  tenement,  or  he- 
reditament, or  other  premi'^cs,  out  of,  or  from  whicli  any  other  person 
assessed  shall  be  removed,  or  whiidi  at  the  time  of  making  S'.ch  rate 
#was  empty  or  unoccupied,  tliat  then  every  person  so  removing  from,  ml 
every  person  so  coming  into,  or  occupyiiii:;  the  j^anie,  shall  be  lialjlc  to 
pay  such  rate  in  proportion  to  the  time  that  such  person  occupied  tiie 
same,  respectively  in  the  same  manner,  and  under  the  like  penally  of 
distress,  as  if  such  person  so  removing  had  not  removed,  orsucli  person 
so  coming  in  or  occupying  liad  been  orii;inally  rated  and  assessed  in 
such  rate  ;  which  said  proportions,  in  case  of  tlispule,  shall  be  ascer- 
tained by  two  justices  of  the  peace. 

By  slat.  13  Eiiz.  c  2.  s.  i.  {antr)  the  present  as  well  as  sid)SC/-iMrnt 
overseers  are  empowered  to  levy  the  poors-rate  and  arrears  thereof  by 
distress,  as  therein  directed.  And  the  warrant  may  be  g;ranteil  as  well 
by  city  Magistrates  as  by  county  Justices ;  (.«.  8.)  ..11  hough  thcilistress 
has  relation  to  taxes  to  which  they  arc  liable.  IH  fi.  2.  r.  IS.  .v.  I. 

Distress  for  Poors- Jiatr.—Vjy  slat.  IT  (j.  2.  c.  33.  .v.  7.  "  f«>r  the  more 
effectual  levying  money  assessed  for  the  relief  of  the  poor,"  il  is  enacted, 

(n)^T.K.ll  ;6J  Coup.  581.  (c)  BT.  B.  fl" 


2i2  Of  the  Poors- Rales.  [Chap.  VIII. 

That,  the  goods  of  any  person  assessed  and  refuping  (o  pay,  may  he  le- 
vied  by  warrant  of  distresf:,  not  only  in  the  phicefor  which  such  assess- 
nif-nt  w  a?  liUide,  Nut  in  any  other  place  a\  ithin  the  same  county  or  pr&- 
cinct  ;  and  if  Stiliicitnt  distress  cannot  l)e  found  within  the  said  county 
or  pr(;ciiict  on  oath  made  thereof  before  some  Justice  of  any  other  county 
or  precinct,  (whicli  oath  shall  be  certified  under  the  Jiand  of  such  Justice, 
on  the  said  warrant,)  such  goods  may  be  levied  in  such  other  county  or 
precinct  by  virtue  of  such  warrant  and  certificate  ;  and  if  any  person 
ihall  find  hiai  or  herself  aggrieved  by  such  distress  as  aforesaid,  it  shall 
and  may  be  lawful  for  sucli  person  to  appeal  to  the  next  General  or 
Quarter  Sessions  of  the  Peace  for  the  county  or  precinct  where  such  as- 
fcssincnt  was  made  ;  and  the  Justices  there  are  hereby  required  to  hear 
and  fui!y  determine  the  same.  And  in  case  any  jjerson  refuse  to  pay 
the  present  overseers,  the  succeeding  overseers  may  levy  tlie  arrears  and 
rein4!)urse  their  predecessors,     [See  also  41  6".  3.  c.  23.  s.  0.] 

By  slat.  21  G.  2.  c.20.  the  Justices  granting  such  warrant  of  distress 
shali  therein  order  the  goods  so  to  be  dislraiwed  to  be  sold  within  a  cer- 
iii'm  time  to  be  limited  in  such  warrant,  so  as  it  be  not  less  than  four 
days,  nor  more  than  eight  days ;  unless  the  sum  for  which  such  distress 
shall  be  )nade,  together  with  the  reasonable  charges  of  taking  and  keep- 
ing such  distress,  be  sooner  paid.  And  the  officer  may  deduct  the 
charges  of  taking,  keeping,  and  selling  such  distress,  out  of  tlie  money 
arising  from  the  sale,  and  also  the  sum  distrained  for.  But  he  shall,  if 
requii'cxl,  shew  the  warrant  to  the  party  distrained  upon,  and  shall  per- 
mit a  copy  thereof  to  !)e  taken,  s.  1, 2. 

A  distress  and  sale,  indeed,  given  by  statute,  is  in  the  nature  of  an 
"xccution. 

By  slat.  28  f7.  3.  r.  49.  v.  t2.  Justices  acting  for  adjoining  counties 
and  personally  resident  in  one  of  them,  may  grant  warrant:;  of  distress  ; 
and  the  ads  of  any  ollicer  in  obedience  thereto  shall  be  as  valid  as  if 
they  had  been  granted  by  Justices  acting  for  the  proper  county  ;  but 
such  \\arrants  must  be  directed  and  given  h\  the  first  instance  to  the 
constable  or  other  olFicer  of  the  county  to  which  they  relate,  and  such 
constable,  ^-c.  may  take  persons  apprehended,  ^c.  before  Justices  in 
tlie  adjoining  county.  And  by  stat.  33  G.  3.  c.  55.  where  sufftcient 
distress  cannot  be  found  within  the  jurisdiction  of  the  Justice  who 
granted  t!ie  warrant,  it  may,  on  being  Imcked  by  a  Justice  of  another 
county,  be  executed  therein.  Also  by  28  G.  3.  c.  49.  s.  4.  Justices  for 
counties  at  large  may  act  as  such  within  any  city  being  a  county  of  it- 
hclf  situate  there  in  or  adjoining  to  such  county,  provided  they  are  Jus^ 
ticcs  for  such  city. 

By  IT  G.  2.  r.  38.  s.  8.  to  prevent  all  vexatious  actions  against  over- 
seers of  the  poor,  it  is  enacted,  that  where  any  distress  shall  be  made 
for  any  sum  of  money  just li/  due  for  the  relief  of  the  poor,  the  distress 


Sect.  III.]  Of  the  Poors-Rates.  213 

itself  shall  not  be  dceined  to  l)e  uiil.iwriil,  nor  the  party  making  it  be 
denivd  a  fre?j);is.scr,  on  account  of  any  defect,  or  want  of  fjrm  in  the 
w  iriMiiL  for  the  appointment  of  such  overseers,  or  in  the  rate  of  assess, 
nicnt,  or  in  the  warrant  of  distress  thereupon  ;  nor  shall  the  party  dij- 
trainin^;  he  deemed  a  trespasser  «/» initio,  on  account  of  any  irregularity, 
which  shall  be  aftcrwanls  done  by  the  party  distrainini;,  but  the  party 
aggrieved  by  such  irregularity,  shall  or  may  recover  full  sati^factijn 
for  the  special  daniaijc  sustained  therc!)y,  anil  no  more,  in  an  action  of 
trespass,  or  on  the  case,  at  thf  election  of  the  plaintiil  or  plaint  ills. 

N-jtr.  A  warrant  may  be  matie  to  distrain  before  the  time  for  which 
the  rate  is  made  is  expired  (a).  Tlie  practice  in  those  cases  has  been 
to  grant  a  conditional  warrant  to  distrain  ;  and  by  Ilott^  C.  J.  convnunis 
error  fitrit  jus  (/>). 

A  constable  may  levy  a  poors-rate  on  goods  in  another  parish;  for 
though  he  cannot  execute  out  of  his  own  district  a  warrant  directed  ge- 
nerally to  all  consta!;les,  yet  he  may  execute  any  where  uilhin  the  li 
mits  of  the  Justice's  jurisdiction,  a  warrant  directed  particularly  to 
him  (r). 

A  distress  for  a  poors-rate  for  lands  not  in  the  occupation  of  the 
plaintiff  may  be  replevied  notwithstanding  the  Sessions  on  appeal  had 
coniirined  tlie  rate ;  the  determining  that  a  man  may  l)c  assessed  for 
>vh  it  he  docs  not  occupy  being  an  excess  of  jurisdiction  [d). 

The  granting  of  a  warrant  of  distress  by  magistrates  to  enforce  pay- 
ment of  a  poors-rate,  is  a  iudicid,  not  a  ministerial  act  (c).  Ikfi.re  a 
distress  for  the  rate  be  levied,  a  summons  should  go  to  the  parly,  that* 
he  may  have  an  opportunity  to  shew  that  he  has  p;iid  for  it,  or  otiier- 
wise  to  exonerate  hiniseif:  for  a  poors-rate  cannot  be  distrained  f.T  be- 
fore it  be  demanded  and  the  payment  thereof  refused  (/). 

If  a  landlord  tender  the  poors- rate  for  his  tenant,  the  overseers  must 
receive  it,  and  a  warrant  ought  not  to  be  granted  to  distrain  upon  the 
tenant  (i/-). 

If  a  landlord  direct  a  tenant,  who  is  overseer  of  the  poor,  to  ])ay  on 
the  landlord's  account,  rates  irre^ular!y  assessed  on  him,  and  promise.? 
that  the  levies  shall  cat  out  the  rents,  the  tenant  may  set  them  oH",  or 
prove  them  as  payment  in  an  action  for  use  and  occupation  (h). 

If  personal  property  be  rateable,  it  is  not  to  be  done  at  random,  ar)d 
to  leave  the  jKirty  rated  to  get  oiT  as  he  can  ;  but  the  oH'.ccr  making  the 
rate  must  be  able  to  support  wliat  he  lias  done  l)y  cviilcnce  (/). 

AVhere  a  person  is  overcharged  in  a  poors-rate,  tJie  Sessions  may  tt' 

yi)  null  N.  p.  22.  (6)  1  Connfs  Bo«.  2j2   pJ.  2J0.  («•)  >  I*!  ''»>■'"■  ***• 

(d)  L  111.  H    1310.  (t)  7  T.  U.  i70.  (/)  1  C0B»1'»  PoM.  SlT.  pL  230. 

Cs-;  Ibid.  :i:>.  j.L^.;9.    Dnug.  420  (A)  3  T^ua-..  t'.;.  «;  4  T  H.  TTT. 

i>9 


211  Of  the  Poors  Rates,  [Chap.  VIIL 

lieve  him  on  apptal,  and  Jiniend  the  r?^>,  by  Icssenhig  the  sura  assessed 
on  liim,  under  the  IT  G.2.  c.  38  [n). 

The  stut.  21  /.  1.  r.  12.  enacts,  'Hiat  Justices  of  the  peace,  mayors, 
baiiilTs,  churchwardens,  and  overseers  of  the  poor,  constables,  and  other 
peace  officers,  may  plead  the  genera!  issue,  and  give  the  special  matter 
in  cvi(!(Mice.  It  also  enacts,  That  any  action  brought  against  them  shall 
!)e  laid  ill  the  proper  county  ;  and  if  npon  the  general  issue  pleaded  tlie 
fict  shall  appear  to  be  done  in  another  county,  the  jury  shall  End  the 
defendant  not  guilty. 

By  stat.  7  J.  1.  c.  5.  If  case,  trespass,  battery  or  false  imprisonment 
shall  be  brought  against  any  Justice  of  the  peace,  mayor,  bailiir,  con- 
stable. See.  concerning  any  thing  by  them  done  l^yvirtuc  of  their  office, 
they  may  plead  the  general  issue,  Sec.  and  if  the  verdict  shall  pass  with 
the  defendant  or  the  plaint  ill'  shall  be  nonsuited,  or  sufier  any  disconti- 
iMiance  thereof,  the  defenilant  shall  have  his  double  costs  allowed  by 
the  judge  before  whom  the  matter  is  tried. 

This  act  has  been  construed  to  extend  to  under-sheriffs  and  deputy- 
constables,  though  they  are  not  particularly  mentioned  (//). 

Note.  The  21  /.  1.  c,  12.  extends  this  act  to  churchwardens  and 
overseers  of  the  poor  (r). 

The  officers  must  get  a  certificate  from  the  Judge,  that  the  action 
was  brought  against  him  for  something  done  in  the  execution  of  his 
office,  in  order  to  entitle  himself  to  double  costs  (d). 

Likewise  the  stat.  2i  G.  2.  c.  44.  enacts,  that  no  writ  shall  be  sued 
'out  against  a  Justice  for  what  he  shall  do  in  the  execut  ion  of  his  office,  till 
notice  in  Malting  of  such  intended  writ  shall  have  been  delivered  to  him, 
or  left  at  the  usual  place  of  his  abode  a  month  before,  and  the  Justice 
may  tender  amends,  and  in  case  the  same  is  not  accej)ted,  plead  such 
tender  in  bar  to  the  action,  together  with  the  plea  of  not  guilty,  and  any 
other  plea  with  leave  of  the  Court ;  and  if  upon  issue  joined  thereon  the 
jury  shall  iind  the  amends  so  tendered  to  have  been  sufficient ;  then 
they  shall  give  a  verdict  for  the  defendant.  It  likewise  enacts,  That  no 
uclion  shall  be  brought  against  any  constable  or  other  officer,  or  any 
other  j)erson  acting  by  his  order,  for  any  thing  done  in  obedience  to  a 
Justice's  warrant,  until  demand  be  made  of  the  perusal  and  copy  of  such 
uarrant,  and  the  same  has  been  refused  for  the  space  of  six  days  ;  and 
in  case  the  warrant  be  shewed  and  a  copy  taken,  and  afterwards  an  ac- 
tion be  brought  against  the  constable,  without  making  the  Justice  wh© 
signed  or  sealed  the  warrant,  a  defendant,  the  jury  shall,  onproduciug 
the  warrant,  tind  a  verdict  for  the  defendant,  notwithstanding  any  de- 
fect of  jurisdiction  in  the  Justice;  and  if  such  action  be  brought  jointly 
against  the  Justice  and  him,  upon  producing  the  warrant,  the  jury  shall 

11}  L'  T.  R.  Ci3.  (b)  Bull.  IV.  P.  w32.  (r)  Ibid.  '&']  lUd. 


Sect.  III.]  Of  the  roors-Rdhs.  21  .. 

linfl  for  him  :  aiid  if  llicy  find  aj^^insl  the  Jiistirc,  tlir  pl.iiiiliir  .'Iiall  rr 
oovo.r  the  cosis  he  i-.  to  pay  lo  such  (h-l'i'mlant  al:;;ull^t  Ihc  Justin-,  witfi 
a  proviso,  that  ilthc  Judge  ctrtiiy  that  il  llic  injury  \vas  wilfully  ii.J 
HViiiciously  coiumilted,  the  plaiiiliir shall  he  cntilltd  to  doiiMf  m'^l.  : 
and  a  proviso  likewise,  that  finch  action  shall  he  cuninuiiccd  \Nitliin  sit 
calendar  monihs  after  the  act  coniniitled. 

The  ahove  Act  extends  on!y  to  actions  of  tori. 

The  ofFicer  must  prove  that  he  acted  in  oixdicrKe  to  t!ie  Miirrant  ; 
and  where  the  Justice  cannot  he  lia!>Ie,  tiie  oliicir  is  not  within  the 
protection  of  tjic  Act  (a). 

If  a  man  he  imprisoned  on  a  Justice's  warrant  on  the  hr-t  day  of 
Januari/y  and  kept  in  prison  till  the  first  day  of  l'fl/ru<tn/,  he  will  he  in 
time  if  he  l)rings  his  action  within  six  months  after  the  hr.st  of  Fcbrna- 
ry;for  the  whole  imprisonment  is  one  entire  trespass.  The  Justice 
havins^-  pleaded  t(n<,ler  of  amcn<!s,  the  plaintilFohtaincd  a  rule  fur  the 
Jefendatit  to  hrin;^  tlie  money  into  Coiu't  for  the  plaintid'  to  take  tlie 
san)e,  upon  tliscontiiiuin:',-  his  action  {b). 

An  ovjrscer  of  the  poor,  who  distrains  for  a  poors-rate  under  a  Jus- 
tice's warrant,  is  an  oniccr  within  tlic  prolecti«)n  of  the  Act  (r). 

But  a  church war<len  takins;  a  distress  for  a  poors-rate  under  a  warrant 
of  mai^ist rates,  is  entitled  to  the  protection  of  .'i-t  (J.  -i.  r.  41.  in  havint; 
the  mai^istrates  miide  defendants  wi<ii  liiiii  in  an  nrtum  of  trespass  (r/). 

Upon  a  distrc's  for  a  poors-rate  beiiic;;  replevied,  the  Justices  whu 
granted  the  warrant  need  not  be  joined,  aecortlini;  to  the  directions  of 
the  2i  G.  2.  c.  11.  ;  for  replevin  is  an  action  ///  rem,  to  wliich  ;he  sta- 
tute has  never  been  held  to  extend  :  and  so  (it  was  said)  w  ith  respect  to 
an  action  of  trespass,  if  an  excess  of  juristiiclion  has  been,  ami  the  as- 
sessment was  coram  imnjudhc;  for  such  is  not  like  the  case  where  the 
Justice  hath  a  general  Jurisdiction,  and  wliose  warrant  the  ollicer  is 
implicitly  Ijound  to  obey  (c). 

Overseers  caiuiot  be  j^iiiity  of  trespass  in  levyin:^  a  poors-rate  by 
distress,  althou:;h  the  rate  if^  objectionable,  if  the  parly  has  not  ap- 
pealed to  the  Sessions  :  neither  docs  any  delect  in  thi-  rale  unappe.aled 
from,  avoid  the  warrant  (/). 

No  action  of  debt  will  lie  for  a  poors-rate  {^). 

"Whether  the  re[)rcsent alive  of  a  party  assessed  (o  the  poors-rale  be 
liable  lo  distress  for  the  rale,  seems  doubthil.  i\  seems  clear,h(>wever 
that  the  representative  is  entitled  to  notice,  !)cfore  Iiis  testator's  or  in- 
testate's goods  are  distrained  :  in  onhr  that  he  may  ha\  e  the  same  op- 
portunity of  excmplini:;  them  from  the  diL:lresE,  as  his  tcsUtor  or  intes- 
tate ^^ould  have  had  (//). 

(a):\  Iliir.   ITr.r..  (t»  Bull      .     i.  '.  •  !         I  .iTi.  L'4''         (d    2  Dl.  R.  13.11 

;«j  7  1'    II  a7U  (/ ;  LCoiMl'a  l!uu   ZM.  pUMl'.     115,  i    LUiir   )li7. 

(A;  Ibi-l    I  H!.  ».  r-l.  I.  r 


216  Of  the  Poors-Rates,  [Chap.  YIII. 

As  to  what  is  distrainable  for  a  poors-rate,  the  principle  of  a  distress 
being  a  pledge,  docs  not  in  this  case  obtain  as  it  does  in  respect  of  rents 
and  amerciaments.  In  this  instance  the  duty  is  personal,  and  tJie  thing 
distrained  is  in  satisfaction  of  the  non-performance  of  it,  and  not  as  in 
the  old  common  law  distresses,  in  the  nature  of  a  nomine pccnce,  to  com- 
pel payment  {a).  The  solid  distinction  is,  that  the  seising  under  the  43 
£l2z.  and  such  like  Acts  of  Parliament,  is  but  partly  analogous  to  the 
common  law  distress  (as  being  replevisable,  <^  c.)  ;  but  is  much  more 
analogous  to  the  common  law  execution  ;  like  a.  fieri  facias,  where  th« 
surplus,  after  sale,  shall  be  returned  (b). 

Therefore  money,  it  seems,  may  be  distrained  for  a  poors-rate.  So 
the  tools  of  a  man's  trade,  his  wearing  apparel,  and  all  other  articles 
necessary  to  enable  him  to  earn  the  money  for  which  the  goods  are 
taken  (c).  So,  beasts  of  the  plough  are  distrainable  for  the  poors-rate, 
even  although  there  were  other  distrainable  goods  on  the  premises ;  on 
the  principle  of  analogy  to  an  execution  {d). 

The  Appeal. — With  respect  to  the  particular  grounds  and  the  course 
of  appeal,  the  reader  is  referred  to  stats.  5  G^.  2.  c.  19. 17  G.  2.  c.  38.  <§• 
41  G.  3.  c.  23.  and  to  the  cases  thereon  in  1  Const* s  Botfs  Poor  Laws. 

(a)  1  Bur.  688.  (b)  1  Willes.  169.  (o;  1  Const'a  Bott.  243.  pi.  230.  p.  2K. 

{d)  I  Bur,  5SP. 


[     217     ] 


CIIAPTEU  IX. 


Of  the  general  Incident  to  Jjcascs  (continued.) 

Section  I.     Of  Waste ;  nitcrcin  of  Fixtures. 
Section  If.     Of  Common  of  Estovcn^, 
Section  III.     Of  Ihnblcmcnts. 


Section  I.    Of  JVastc. 

WASTE,  vastum,  is  a  spoil  or  deslruction  in  houses,  gfirclcn^,  trees, 
or  other  corporeal  hereditaments,  to  the  disherison  of  him  lliat  hath 
the  remainder  or  reversion  in  fce-simple  or  fcc-tail  {a). — Waste,  is 
either  voluntary,  which  is  a  crime  of  commission,  as  \>y  pullinij  down  a 
house;  or  His pcnnissii^r,  wliich  is  a  matter  ofonussion  only,  as  i)y 
Eulicring  it  to  fall  for  want  of  necessary  reparations;  both  of  whicii 
are  equally  injurious  to  him  that  Iiath  the  iiiheritancv  (^).  Voluntary 
waste  chielly  consists  in  1st.  foiling  tim!)cr-trces;  2dly,  puliin;^  dinvj 
houses;  3dly, opening  mines,  or-  pits;  4thly,  cljanging  the  course  of 
husbandry;  5thly,  destroying  heirlooms  (r). 

Whatever  does  a  lasting;  damac;e  to  tlie  freehold  or  inhcrifmcc  is 
waste;  therefore,  removing  wainscot,  floors,  or  other  thim;";  once 
fixed  the  freehold  of  a  house  is  waste.  With  respect  iiouivcr  to 
•what  shall  be  deemed  futures  of  sucli  a  nature,  or  under  sucii  cir- 
cumstances as  that  they  can  or  cannot  lie  removed  by  an  out-going 
tenant,  or  taken  by  his  executor,  or  by  the  heir,  the  law  is  nnjch  less 
strict  at  this  day,  than  it  used  to  be.  The  old  and  general  rule  of  law 
was,  tliat  whatever  was  fixed  to  the  freehold  bcciime  part  of  it,  and 
could  not  be  taken  away.  But  of  late  years  there  have  been  excep- 
tions to  this  rule  ((/).  The  first  is  between  landlord  .nid  tenant,  t!ic 
Latter  of  whom  may  now  take  away  durinij  the  term  all  ciiimniy- 
pieces,    and  even  wainscot  put  up  by  hiniself;  so  of  beds  fastened  to 

(a)  Co.  Lit.  53.  (6)  Wonrt'»  Inst.  521. 

(c)  1  Cruiae'i  Dig.  Ut3.  ».  U.  (d)  3  Atk.  16.  o.  I. 


218  Of  Waste;  nJierein  of  Fixtures.      [Cliap.  IX. 

the  ceiling  with  ropes ;  nay  even  though  nailed  ;  and  all  such  things 
necessary  for  trade,  as  brewing  utensils,  furnaces,  coppers,  firc-engines, 
cider-mills,  &.c.  as  he  has  himself  put  up  or  erected  (r/). 

But  such  removal  must  be  ivithln  the  term,  otherwise  he  will  be 
tleemed  a  trespasser.     Thus,  where  tenant  for  years  made  an  under- 
lease of  a  liouse  to  /.  .V.  who  was  by  trade  a  soap-boiler :  J.  S.   for 
the  convenience  of  his  trade,  put  up  vats,  coppers,  tables  and  parti- 
tions, and  paved  the  back-side,  ^c.  and  now  upon  <i  fieri  facias  against 
J.  S.  which  issued  on  a  judgment  in  debt,  the  Sheriff  took   up  all  . 
these  things,  and  left  tlie  house  stripped  and  in  a  ruinous  condition, 
so  that  the  first  lessee  was  liable  to  make  it  good,  and  therefore  brought 
a  special  action  on  the  case  against  the  Sheriff  and  those  that  bought 
the  goods,  for  the  damage  done  to  the  house.     Et  per  Holt  C  J.  it  ^ 
was  held;  1st.  that  during  the  term,  the  soap-boiler  might  well  re- 
move tlie  vats  he  set  up  in  relation  to  trade,  and  that  he  might  do  it 
l)y  tlie  common  law,  (and  not  by  virtue  of  any  special  custom)   in 
favour  of  trade  and  to  encourage  industry  :  but  after  the  term,  they 
became  a  gift  in  law  to  him  in  reversion,  and  are  not  removeable  ; 
2dly.  that  there  was  a  dillerence  between  what  the  soap-boiler  did  to 
carry  on  his  trade,  and  what  he  did  to  complete  the  house,  as  hearths 
and  chimney  pieces,  which  he  held  not  removeable  ;  [the  latter  how- 
ever at  least,  are  now  removcalWe  ;J  3dly,  that  the  Sheriff  might  take 
them  in  execution,  as  well  as  the  under-lessee  might  remove  them  ;  and 
so  this  was  not  like  tenant  for  years  without  impeachment  of  waste.: 
in  that  case  he  allowed  the  Sherill"  could  not  cut  down  and  sell,  though 
the  tenant  might ;  and  the  reason  is,  because  in  that  case,  the  tenant 
hath  only  a  bare  power  without  an  interest,  but  here  the  under-lessee 
hath  an  interest  as  well  as  a  power,  as  tenant  for  years  hath  in  standing 
corn,  in  which  case  the  Sheriff  can  cut  down  and  sell  (/;). 

M'here  the  tenant,  houevcr,  has  by  law  a  right  to  carry  away  any 
erections  or  other  things,  on  the  premises  which  he  has  quilted,  the 
inciitintion  of  Lord  Keuijou's  mind  was  that  lie  had  a  right  to  come 
on  the  premises,  for  the  purpose  of  taking  them  away  :  but  as  to 
that  point,  the  defendant  in  the  principal  case  had  letjudgment  go  by 
default  (r). 

In  trover  for  ten  load  of  timber,  the  case  was,  that  the  defendant 
had  been  tenant  to  the  plaintiii",  and  erected  a  barn  upon  the  premises, 
and  put  it  upon  j)attens  and  blocks  of  timber  lying  upon  the  ground, 
but  not  fixed  in  or  to  the  ground  :  and  upon  proof  that  it  \vas  usual 
in  that  country  to  erect  barns  so,  in  order  to  carry  them  away  at  the 
end  of  the  term,  a  verdict  was  given  for  the  defendant  (r/).  But 
though  Lord  Chief  Justice  Trcbi;  thought  proper  in  that  case,  to  take 

(aj  1  Alk.  .177,  8.  (t)  1   Atk.  477.   1  Salk.  308. 

{r)  \  Esp.  H.  -yj.  {d)  Bull.  N.  P.  34. 


;.  I.]  Of  Ud.tc:  ivherdii  of  Fixlurts.  l>19 

a(lvantai;e  of  tlicciulom  of  the  country,  yet  it  is  apprHinidcd  that  it 
would  now  1)0  dcterniiucd  in  favour  of  the  tenant  without  any  (Ijlli- 
culty. — Rut  when  a  purchaser  of  lands  had  hrougJit  an  rjiclnurit 
as^ainst  the  tenant  from  year  to  yc.ir,  and  the  parlies  had  cntn'cd  into 
an  agrccnicni  tliat  judi^ment  fliould  he  entered  Cor  the  j)laintiii',  w  itii  a 
stay  of  execution  till  a  given  period;  Ihon-h  in  ?ueh  ai^reenicnt  no 
mention  was  made  of  any  l)uil(lin2;s  or  fixtures,  it  was  hdd  lliat  the 
tenant  couKI  not  in  the  meant in)c  remove  htiihlini^s  (a  wooden  sta!)lc 
standinp;  upon  rollers)  or  fixtures  (posts  or  raiN)  from  the  prcmii^es, 
wliieli  he  had  himself  erected  helorc  actir)n  1»rou«:ht ;  Ixcause  tlie  f.i  r 
interpretation  of  such  ai-reement  was,  that  tlic  defendant  should  in 
the  mean  time  do  uti  act  to  alter  the  premises,  hut  should  deliver  thenj 
up  in  the  same  condition,  a^  wlien  tlie  ai;reement  was  made,  and  judi^- 
ment  signed.  I'or  tiiou^h  he  would  clearly  have  hcen  entitled  (o  take 
away  tlie  articles,  if  lie  had  done:  it  durinir  tlic  continuance  ol  his  term 
from  year  to  year,  yet  hy  the  a^^Teement  the  parties  had  made  a  new 
contract,  which  put  an  end  to  the  term  {a). 

If  however,  a  man  sells  a  house  where  there  is  a  copper,  or  a  hrew- 
house  where  there  are  utensils,  unless  there  was  some  considera- 
tion given  for  them,  and  a  valuation  set  upon  them,  they  would  nut 
pass  (/;). 

In  an  action  of  covenant  brongid  l)y  the  plainliiV  a.:;ainst  the  de- 
fendant wlio  had  heen  liis  lessee,  under  a  lease  containing  a  covenant 
that  the  lessee  should  leave  all  the  huildinujs  which  then  were,  or 
should  be  erected  on  the  premises  during  the  teruj,  in  icpair,  i\.<:.  (lie 
breacli  assigned  was,  that  the  defendant  took  down  and  carried  auay 
two  sheds,  which  liad  heen  erected  during  the  term.  'J  he  defendant 
pleaded  j)erformancc  of  the  covenants  and  issue  was  taken  on  the 
lireacli  as  above  assigned.  The  huii(lin;j;s  in  question  were  two  sheds, 
called  Dutch  barns,  which  had  been  erected  by  the  defendant  during 
Ills  term  ;  and  which  his  counsel  contended  he  had  a  right  to  remove. 
Lord  Kriv/nn. — If  a  tenant  will  bufld  upon  premises  demised  to  him  a 
substantial  addition  to  the  house,  or  add  to  its  magnificence,  he  must 
leave  his  additions  at  the  expiration  of  the  term,  for  the  l)eneiit  of  hig 
landlord:  but  the  la^v  will  makt;  the  n;()-l  favouraldc  construction  for 
the  tena!it,  where  he  ha5  made  necessary  and  useful  erections  lor  the 
benefit  of  his  trade  or  jnanufacture,  and  wliicli  enable  him  to  carry  it 
on  witli  more  advantage.  It  lias  been  luld  so  in  tJie  case  of  citlcr- 
mills,  and  in  other  cases;  and  I  shall  n.>l  ii^.rrow  the  law.'but  IioM 
erections  of  this  sort,  made  for  the  benefit  of  trade,  or  constructul  us 
the  present,  to  l)e  removea!)le  at  the  end  of  the  term.  \{  was  t!:e;i 
contended,  that  by  the  express  \v/>rd^  of  the  covcitant  the  teua: 


225  Of  Waste  s  R'hercin  of  Fixtures.       [Chaj>.  IX. 

fo  leave  all  erections  on  the  premises  at  the  end  of  the  term.  Lord 
Krn'/on. — I  am  aware  of  the  full  extent  of  that,  and  not  quite  sure  that 
it  conchides  the  question.  It  means  that  the  tenant  should  leave  ail 
those  l)ni!dings  wliicli  are  annexed  to  and  become  part  of  the  reversion- 
ary estate  {a),  [See  Lord  EUtnborough'' s  Notice  of  this  Nisi  Prius 
Case,  in  Llwes  v.  Man\  1  East's  R.  38.] 

A  covenant  by  a  tenant  to  yiekl  up  in  repair  at  the  expiration  of  his 
lease  all  buiidings  which  should  be  erected  during  the  term  upon  the 
demised  premises  includes  Iiuildings  erected  and  used  by  the  tenant  for 
the  purpose  of  trade  and  manufacture,  if  such  buildings  be  let  into 
tlic  soil,  or  otherwise  fixed  to  the  freehold,  but  not  where  they  merely 
rest  upon  blocks  or  pattens  {b). 

Fixlures. — Ttan^:ingp,  pier-glasses,  ,<tc.  though  forming  part  of  the 
wainscot  and  fixed  with  nails  and  screws  to  the  freehold,  are  not  io 
be  taken  as  part  of  the  freehold,  but  are  removeaI?Ie  by  the  lessee  of 
the  house  (r), — So  marble  chimney-pieces  may  be  removed  by  the 
tenant  [d)> 

To  trespass  for  breaking  and  entering,  Src.  and  pulling  down  and 
taking  away  certain  buildings,  Src  the  defendant,  as  to  the  breaking 
and  entering,  suilered  judgment  by  default,  and  pleaded  not  guilty  as 
to  the  rest.  It  was  held,  that  such  plea  was  sustained  by  shewing 
that  the  building  taken  away,  which  Avas  of  wood,  was  erected  by 
him  as  tenant  of  the  premises,  on  a  foundation  of  brick,  for  the  pur- 
pose of  carrying  on  his  trade,  and  that  he  still  continued  in  possession 
of  the  premises  at  the  time  when,  ^"c.  though  the  terra  was  then  ex- 
pii-ecl. — At  the  trial,  Lord  Kenyon  observed,  that  the  mere  erection  of 
a  chimney  w  ould  not  prevent  the  right  of  taking  away  the  rest  of  the 
building,  which  surrounded  it,  where  the  trade  was  carried  on.  In 
D-udlcij  and  Dudley,  a  steam  engine,  to  which  a  chimney  necessarily 
belonged,  was  held  to  be  removeable.  Modern  determinations  have, 
for  the  benefit  of  trade,  allowed  many  things  to  be  removed,  ^vhich 
tiic  rigour  of  former  determinations*  considering  them  as  fixed  to  the 
freehold,  prohibited.  The  case  of  cider-mills  is  familiar  to  us  all. 
The  construction  ought  to  be  favoura})le  to  the  tenant,  and  my  opinion 
i--,  that  he  was  warranted  in  removing  the  building  in  question  ;  but 
I  will  reserve  the  point  (r).  And  upon  the  case  being  argued  after- 
wards, his  lordship  said,  That  the  old  cases  upon  this  sub-jcct  leant 
to  consider  as  realty  whatever  was  annexed  to  the  freehold  l)y  tlie 
occupier  ;  but  in  modern  times  the  leaning  has  always  been  the  other 
way  in  favour  ot  the  tenant,  in  support  of  the  interests  of  trade,  which 
is  become  the  pillar  of  the  state.     V/hat  tenant  w  ill  lay  out  his  money 

(a)  3  Esp.  R.  1!.  (h)  \  Taunt.  19.  'c)  I  1'.  Wma.  24. 

(d)  1  Alk.  477.  \(]  i  Eip.  R.  33. 


Sect,  f.j         Of  W(isl(  ;  ivhcrcin  of  Fi.rfnns.  -221 

in  costly  imjt-ivcmcnt  of  the  land,  if  he  nuipt  leave  every  thinq  hc- 
liind  him  uliich  can  he  said  to  he  arinvxcd  to  it  ?  Shall  it  \)c  s;;id,  that 
the^rcat  gardeners  and  luiiscrynjen  in  llic  nriiilihniuhood  of  this  nic- 
Iropolis,  >vho  expend  thousands  of  pounds  in  the  ereclion  of  green- 
houses, hot-hoiipcs,  aV.  are  obliged  to  leave  all  tliese  thiui;s-  upon  the 
premises,  wiitn  it  i-  noturions  tiiat  t!uy  are  even  peniiitlcil  to  remove 
tree?,  or  such  as  are  likely  to  become  siicli,  by  ll)c  tlx-iisand,  in  the 
necessary  courf^e  of  their  trade?  If  it  were  otherwise,  the  very  object 
of  their  holdini;  uouhl  be  (kfeatcd.  'Jhia  is  a  dcicriptinn  of  i)roperty 
divided  from  the  realty  ;  and  some  of  li;e  cases  have  even  gone  furtiier 
in  favour  of  the  executor  of  tenant  for  life  a;;;ainst  the  remainder-man, 
between  wliom  the  rule  has  been  holden  flrieler;  for  it  has  been  de- 
teruuned  lh;i.t  the  executor  of  Icniiit  f.ir  lif.;  was  entitl.'d  io  tike  an  ay 
the  fire-engine  of  a  colliery.  The  ease  of  Fitzhtrhcrt  v.  Siuuv  (I  If. 
lil.  R. 'J'/o.  vide  aiitt.)  turned  uj)on  the  construction  of  a!J  ajirccr.ieiit 
that  such  things  sJiouid  be  left  on  the  premises,  and  dccideci  ikul)iii:5 
against  the  general  principb'.  Here  the  defendant  did  no  more  lh:;n 
he  had  a  right  to  do  :  he  was  in  fact  still  in  possession  of  the  pieraises 
at  the  time  tlic  things  were  taken  away,  and  thereiore  there  is  no  pre- 
tence to  say  that  he  had  abandoned  them.  And  by  J  an- r  en  re  J.  ii  is 
admitted  that  the  defendant  has  a  right  In  take  tiiese  thing^saway  dtir- 
in<!;  the  term  :  and  all  that  he  admits  upon  this  record  against  himself  by 
suliering  judgment  to  go  by  default  as  to  tiie  breaking  and  entering 
is,  that  he  was  a  trespasser  in  coming  upon  tl;e  lane!,  but  not  a 
trespasser  r/e/n^/jts  asporlafis;  as  to  so  much  therefore  he  is  enlilied  to 
judgment  («). 

Another  exception  is  bctwern  tenant  for  life  or  in  tail,  and  tlio 
reversioner  or  remainder-man.  The  former  also,  may  remove  br^jwing 
utensils,  furnaces,  coppers,  (irc-engincs,  cider-njills,  A'-r.  wliich  he 
has  erected,  and  by  which  he  not  only  en  joys  the  j.'rolit  of  llic  estate, 
but  carries  on  a  sp.eciesof  trade  :  and  if  he  iloas  not  reuovc  them  in 
his  lifetime,  tliey  go  to  Ids  executor  ('/).  Reasons  of  j)!il>lic  beneiit 
and  convenience  have  tended  tocstal)li^h  this  principle  ;  and  indeevi  it 
is  but  consonant  to  common  ideas  of  juslicc:  as  for  instance,  in  the 
case  of  a  fire-engine,  it  is  very  well  known  that  iiltle  jirofit  coidd  be 
made  of  coal-mines  without  such  an  engine;  and  tenants  for  life 
■would  be  discouraged  in  creeling  them,  if  they  must  go  from  thiir 
representatives  to  a  remote  remainder-man,  wlmn  the  len.uit  f)r  life 
raii',ht  possibly  die  the  next  day  after  the  eiu-ine  was  sA  up  (r ).  So, 
cml)lemcnts  go  to  the  ci.ccutor,  and  not  to  the  remainucr-man,  the 
public  being  interested  in  the  produce  of  corn  and  other  grain,  i.ut 
corn  growing  belongs,  it  is  said,  to  a  devisee  of  land,  and  nyt    to  las 

^o^  2  r.vV',  n.  sn  '-)  i  AV:.  177. 9.  "■)  3  All.  :a, 

30 


2^2  Of  Hash  ;  nhcrciti  of  Fixiuns.        [Cliap.  IX. 

executor.  Though  ?i  devisee  of  goods,  stock  and  nu;veal)les  shall 
take  it  from  both  (a).  Hangujgs,  cl;iniiiey-gla££es,  or  pier-glasses, 
l)eing  matters  of  ornani'jiit  and  fiiniiture,  do  not  go  with  the  house, 
but  {o  the  executor  {h). 

The  ride  however  Ht ill  Iiolds  as  bctwcoi  Jicir  and  executor  :  the  free 
hold  dc;ceiUiii)g  on  the  heir,  the  executor  cannot  enter  to  take  away 
fixtures  without  being  a  trespasser  [r).  hv\'.:'^A,  in  questions  betuecM 
tiie  heir  or  devisee  and  the  executor,  cnpl)oards,  presses,  lockers  and. 
oilier  fixtures  of  tlie  like  kind,  niay  ^\\\\\  pro[)riety  enough  be  con- 
fiidercd  as  annexed  to  and  parts  of  the  freeliold.  Tiie  law  will 
]>re&uniC,  that  it  was  the  intention  of  the  o\\  ner  under  whose  bounty 
the  executor  claimcth,  that  they  should  be  so  considered,  to  the 
end  that  the  house  niight  remain  to  tiiose,  who  by  operation  of  Jaw  or 
l)y  Ivjqucst  should  become  ii-.titled  to  it,  in  tliesame  j)!ight  he  put  it,  or 
should  leave  it,  entire  and  un  defaced.  But  in  capital  cases  Mr.  Jus- 
tice Foster  (r/).  was  of  opinion,  that  such  fixtures  wlu'ch  merely  supply 
the  place  of  chests  and  other  ordinary  utensils  of  household,  should  be 
considered  in  no  otlier  light  than  as  mere  moveables,  pertaking  of  the 
nature  of  those  utensils,  and  adajjtcd  to  the  same  use.  Therefore  in 
favour  of  life,  a  distinction  is  to  be  taken  between  cases  relative  to  mere 
properly  and  such  v,  herein  life  is  considered. — An  action  of  trover  (e) 
■svas  brouglit  by  the  plaintiU's  as  administrators  of  Eobcrt  Lcuiimi 
against  tlie  defenelant  for  certain  salt-pans  which  were  put  into  wyche 
houses  in  Cheshire.  The  pans  were  brought  in  pieces.  I'he  wyche 
houses  are  of  no  use  without  the  pans,  nor  is  the  brine  of  any  use  with- 
out them.  There  was  room  for  the  workmen  to  walk  round  them 
uithin  tlie  building.  The  pans  were  fixed  by  brick  and  mortar  to  the 
floor  of  the  building  ;  and  tliere  was  a  furnace  under  it.  The  bui!dii>g 
and  lodging  rooms  at  the  end  of  it ;  which  building,  with  the  pans,  let 
for  31.  a  week.  The  question  was,  whether  these  pans  were  to  go  to 
the  executor  or  to  tlie  heir.  The  ancestor  was  seized  in  fee.  Lord 
Mansfield  delivered  the  opinion  of  the  Court.  All  the  old  cases  (ami 
there  are  some  to  i)e  found  in  the  year-books,  see  .yAr/;.  7c>«r/(.4G9,4rO,) 
lean  in  Aivom-  of  the  heir, and  so  rigidly,  that  if  a  tenant  Mas  to  put 
up  a  wainscot  or  pictures  let  into  the  wainscot,  t^r.  he  could  not  take 
them  away.  There  has  been  a  relaxation  of  two  species  of  property,  the 
one  between  landlord  and  tenant,  as  marble  chimney-pieces,  and  things 
■which  are  necessary  for  trade  &c.  and  in  the  removal  of  these  there  is 
no  hurt  to  the  landlord.  The  tenant  says,  I  leave  the  premises  just  as 
1  fotuid  them.  The  other  species  in  which  there  has  been  a  relaxation 
is,  between  tenant  for  life  and  the  remainder-man.  If  the  former  has 
been  at  any  expense  for  the  benefit  of  the  estate,  as  by  erecting  a  fire- 

[n]  RiiU.  \.  P.34.  [h]  1   P.Wms.  91.  [c]  1  Atk.  -177.  [d]  Fost  10». 

U]  Lawtont>.  Lanton.D.  11.  Ea^t.  22  ti.  3.  cited  D-  1.  a  Atk.  JO.  &  i.  II.  Bl.  R.  253.  n.  a. 


Sect.  I.]  Oy  IVdstc ;  nhcrdii  of  Fi.vlnns.  223 

/ 

engine,  or  any  tlilnij  else  by  which  it  may  he  improvcil,  in  <;uch  ca.sc  it 

has  been  determined  that  the  hrc-enirine  shouhl  go  to  the  cxcculor,  on  a 
l)rin(  iphi  of  pnhlic  CDnvenicncc  ;  I)(iri'<  an  encnurajement  to  hiy  out 
money  in  inipiovin.:;  tlie  estatr,  wliicli  the  tcinnt  uoolil  not  otLcrwise 
be  disposed  to  do.  The  same  argument  in:iy  l»i"  apj)li( d  to  the  case  of 
tenant  for  life  unci  remainder-man,  as  to  that  of  landlord  and  tenant; 
namely,  that  the  remainJ»'r-mun,  is  not  injii.td,  hut  tikes  tlie  estate  in 
the  same  condition  as  if  the  thing  in  queRtion  had  never  been  raised. 
The  tenant  for  life  will  not  erect  such  things  unless  they  can  go  to  his 
executor.  lint  I  cannot  find  any  case  (ex(e[>t  tlat  aI)out  the  cider- 
niiil)  wiure  there  has  been  any  relaxation  between  the  heir  and  exe- 
cutor. That  case  is  not  prink-d  al  large,  but  it  most  probalily  turned 
upon  a  custom.  Now  consider  the  present  case,  whieli  is  Viry  strong. 
A  salt  brill!'  in  the  county  of  C/ushirr  is  a  r.io>t  valuable  inhcrilance. 
But  there  is  no  enjoying  the  inheritance  without  the  buildings  and  salt- 
pans :  they  arc  of  no  use  but  for  that  purpose  and  the  inheritance  is  of 
no  value  without  them.  To  the  executors  they  can  be  worth  no  more 
than  old  iron  and  old  bricks,  if  taken  .ivay  :  he  could  never  mean  there- 
fore, to  give  them  to  the  executor, and  put  him  to  the  expense  of  taking 
them  away  witliout  any  advantage  to  him,  w  ho  could  onlv  have  the  old 
materials,  or  a  contiil)utiou  from  the  heir  in  lieu  of  them.  Ihrc  t!ie 
ancestor  erected  tliem  at  his  own  expense  on  his  fee-simnle.  It  !•<  i;::- 
pos-ible  that  he  sliould  mean  them  to  l)e  severed  at  his  death;,  for  Ihey 
arc  worth  nothing  to  an  executor,  and  very  valuable  to  the  heir,  who 
gains  8/.  per  week  by  them.  On  the  reason  of  the  thing  therefore,  and 
tljc  intention  of  the  testator,  they  must  go  to  the  heir.  It  would  have 
been  a  very  iliilerent  consideration,  if  tins  salt-brine  had  been  let  to  a 
tenant  who  had  erected  these  pans.  There  he  njight  havcsai  I,  1  was 
at  the  expense  of  erecting  tliem,  and  therefore  my  executor  should  have 
them;  and  I  leave  the  estate  as  I  received  it:  tljitas  I  elated  before, 
would  i)e  for  the  enconragement  and  convenience  of  tnivlc,  and  the  be- 
nctil  of  the  e^t.ite.  Therefore  we  a:c  of  opinion  they  go  to  thr  lu  ir. 
Judgment  for  the  defendant. 

This  subj"ct,  so  important  to  every  one  in  th.c  situati-n  of  landlf.ril 
or  tenant,  is  treated  in  a  manner  so  elaborate  ai:d  perspicuous  by  the 
present  learned  and  noble  Chief  Justice  of  the  Court  of  Kirn^^s  flrnrh^ 
in  tlic  judgiu'jnt  delivered  by  Iiliu  iti  the  eat:c  of  I'Jtif^i  v.  /,/.'/.;  (o),  that 
th.c  i:^form.i!i  lU  uLlch  we  are  desirous  to  convey  to  our  readers 
Avoull  be  incomplete  were  we  to  forbear  to  ins:;rt  any  part  tl.crcof. 

The  Immediate  point  decid{  d  was,  that  a  tenant  i:i  agriculture,  who 
erected  at  his  own  expense  and  for  the  me.c  necessary  and  convenient 
occupation  of  his  farm,  a  l)east-house,  carpenter's  shop,  fuel-house, 
cart-house,  pump-hjufc,  and  fold-yard  wr.ll,  wiiic'i  buildinss  were  of 

(a)  i  }  tu\  R.  •" 


224  Of  Waste ;  nhereiu  of  Fixtures,        [Chap.  IX. 

brick  and  mortar,  and  tiled,  and  let  into  the  ground,  cannot  remove 
the  same,  thouijh  during  his  term,  and  though  he  thereby  left  the  pre- 
mises in  the  same  state  as  when  he  entered. 

In  delivering  the  judgment  of  the  Court,  Lord  Ellenborough,  having 
stated  the  above  facts  of  the  case,  said.  The  question  for  the  opinion 
oi  the  Court  w  as,  \^'hether  the  defendant  had  a  right  to  take  away 
ilidst  erections?  Upon  a  full  consideration  of  all  the  cases,  ^ve  are  all 
of  opinion  that  the  defendant  had  not  a  right  to  take  away  these 
erections. 

Questions  respecting  the  right  to  what  are  ordinarily  called  fixtures, 
principally  arise  between  three  classes  of  persons.  1st.  Between  dif- 
ferent descriptions  of  representatives  of  the  same  owner  of  the  inherit- 
ance, viz.  between  his  heir  and  executor.  In  this  first  case,  i.  c.  as  be- 
tween heir  and  executor  the  rule  ol/iains  with  the  most  rigour  in  favour 
of  the  inheritance,  and  against  the  right  to  disannex  therefrom,  and  to 
consider  as  a  personal  cliattel,  any  thin^,  which  has  been  aflixed  there- 
to. 2diy.  Between  the  executors  of  tenant  for  life  or  in  tail,  and  the 
remainder-man  or  reversioner;  in  which  case  the  right  of  fixtures  is 
considered  more  favourably  for  executors,  than  in  the  preceding  case 
between  heir  and  executor.  The  3d  case,  and  that  in  which  the 
greatest  latitude  and  indulgence  have  always  been  allowed  in  favour  of 
the  claim  to  having  any  particular  articles  consi  .ered  as  personal  chat- 
tels, as  against  the  claim  in  respect  of  fi'cehold  or  inheritance,  is  the 
ca?c  between  landlord  and  tenant. 

But  the  general  rule  on  this  subject  is  that  which  obtains  in  the  first 
mentioned  case,  /.  c.  between  the  heir  and  executor;  and  that  rule  was 
found  in  the  year-book  17  E.  2.  p.  518.  and  laid  down  at  the  close  of 
Ilerlakendcn's  case,  (-i  Co.  6i.  and  Co.  Lilt.  53.  in  Cooke  v.  IJumphrri/, 
liloore,  177.  and  in  Lord  Darbij  v.  Js'^uiih,  Hob.  231*.  and  in  other 
cases :)  is  that  where  a  lessee,  having  annexed  any  thing  to  the  freehold 
during  the  term,  afterwards  takes  it  away,  it  is  w-aste.  But  tliis  rule 
at  a  very  earl}'  period  had  several  exceptions  attempted  to  he  engrafted 
upon  it,  and  which  wej-e  at  last  cfTectually  engrafted  upon  it,  in  favour 
of  tratle  a;:d  of  tliose  vej:sels  and  utrnsils  which  are  immediately  sub- 
servient  to  the  purposes  of  trade.  In  the  year-I)ook  42  is.  3.  6.  the 
right  of  the  tenant  to  remove  a  furnace  erected  by  him  diu'ing  his  term 
is  doubted  and  adjourned,  in  the  year-book  of  the  20  //.  7.  13.  a.  <^' 
b.  which  was  the  case  of  tre.'-j)ass  against  executors  for  removing  a  fur- 
nace fixed  with  mortar  by  their  testator  and  annexed  to  the  freehold, 
and  which  was  holden  to  be  wrongfully  done,  it  is  laid  down,  that  "  If 
a  lessee  for  years  make  a  furnace  for  his  advantage,  or  a  dyer  make  his 
vats  or  vessels  to  occapjj  his  occupation  during  the  term.,  he  may  remove 
them:  but  if  he  sufier  them  to  be  fixed  to  the  earth  after  the  term,  they 
then  belong  to  the  lessor.  And  so  of  a  baker.  And  it  is  not  waste  to  remove 


Sect.  I.]         Of  Ifaste  ;  nhrrein  of  Fixtures,  22.'> 

such  thlni?6  witliiii  the  term  l)y  some,  and  this  shall  he  against  the  opi- 
n  ions  a  foresaid."  Hut  the  rule  in  this  extent  in  favour  of  tenants  is 
doiihtcM  afttruai'lsin  21  //.  7.  27.  ami  narrowed  tlirrc,  by  allow  in;^ 
tjjat  the  lessee  for  years  conkl  only  remove,  wifhin  the  term,  thini;s 
fixed  to  the  ^roiiiiil.  and  not  to  the  n\ alls  of  the  principal  !)uilding:. 
However  in  process  of  time  the  rule  in  favour  of  the  ri.;hl  in  the  tenant 
torenjove  utensils  set  up  in  niatinn  to  trade  became  fully  established  ; 
ami  accordingly  we  find  Lord  flolt  in  Poolers  case,  Snlk.  308.  laying 
down,  (in  the  instance  of  a  soap-boiler,  an  niuler-tenant  whose  vats, 
coppers,  A'( .  fixed  had  been  taken  in  execution,  and  on  which  account 
the  fin4  lessee  had  brought  an  action  a.s^ainst  the  shvriiV,)  that"  <luring 
the  term  the  soap-boiler  mij;ht\\ell  remove  the  vats  he  set  up  in  relation 
to  trade  ;"  and  that  he  mi^ht  do  it  by  conmion  law,  and  not  by  virtue 
of  any  special  custom,  "  in  favour  of  trade,  and  to  encoura'^e  iiidustry,** 
but  that  after  the  term  they  becanje  a  i^ift  in  law  to  hin>  in  reversion, 
and  were  not  removeabie.  lie  adds,  that  there  was  a  diftVrence  be- 
twceiMvhat  the  soap-boiler  did  to  carry  on  "  liis  trade"  and  whatlicdid 
to  complete  "  his  house"  as  "  liearths  and  chimney-pieces,"  which  were 
held  not  removeabie.  The  indulgence  in  favour  of  tlie  tenant  for  years 
during  tiie  term  hasLecn  since  carried  further,  and  he  has  been  allowed 
to  carry  away  matters  of  ornament,  as  ornamental  marble  cliinmej- 
pieces,  pier-glasses,  hangings,  wainscot  fixed  only  by  screws,  and  the 
like.  JJrck  V.  JlcOon',  1  I\  V'nts.  94.  ex  parte  ^:2uinreij,  1  Atk.  477.  aud 
jMiiton  V.  ImivIoh.  3  Atk.  13.  [sec  also  ante.']  But  no  adjudged  ca«=e. 
has  yet  gone  the  length  of  establishing  that  buildings  subservient  to 
purposes  of  agriculture,  as  distinguished  from  those  of  trade,  have 
been  removeanle  by  an  ex:'Cutorof  tenant  for  life,  nor  by  the  tenant 
hiniself  who  built  [\vt\\\  diiriti!:;;  his  ter)n.  In  deciding  whether  a  par- 
ticular fixeil  instrument,  machine,  or  even  building,  should  be  consi. 
dered  as  removeabie  by  the  executor,  as  l)ctwecn  him  and  heir,  the 
Court  in  the  three  principal  cases  on  this  subject  {viz.  3  ////".  13.  -/m- 
hhr  113.  and  1  //.  Blaek.  2.39.  in  n.  [and  Atk.  s.  c]  may  be  considered 
as  having  been  decided  mainly  on  the  ground,  tliat  where  the  fixf^d  in- 
strument, engine,  or  utensil,  (and  the  building  covering  the  same  fdlU 
A\  itl:in  the  s.unc  principle,)  was<in  accessary  to  a  matter  of  a  personal  na- 
ture,tliat  it  should  be  Itself  considered  as  personalty.  The  fire-ent;ine 
in  3  Atk,  and  Aniiler,  was  an  accessary  to  the  carrying  on  the  trade  of 
i:::e.ttlng  and  vending  coals  ;  a  matter  of  a  personal  nature.  Lord  llnrd- 
uiekc  says, in  the  case  in  Am'ilrr,  "  A  colliery  is  not  only  an  cnjnyujent 
of  tlic  estate,  but  iu  jinrt  carri/in:^  on  a  frade.^^  And  in  the  case  in  3  .Ilk. 
he  says,  "  One  reason  tliat  weighs  with  me  is  its  being  a  mi.vcd  case, 
between  enjoying  the  profits  of  the  lands,  and  carrying  on  a  species 
of  trade  ;  and  considering  it  in  this  light,  it  comes  very  near  the  in- 
stances in  brewhouses,  Src.  of  furnace?  and  coppers."     Upon  the  saiue. 


226  Of  Waste ;  nhcrein  of  Fixtures.       [Chap.  IX. 

principle,  Lord  C.  B.  Comyns  may  be  considered  as  having  decided  the 
case  of  the  cider-mill ;  i.  c.  as  a  mixed  case  between  enjoying  tlic  profits 
of"  the  land  and  carryin:^  on  a  species  of  trade  ;  and  as  considering  the 
cider-mill  as  properly  an  accessary  to  the  trade  of  maldng  cider  (a).  In 
the  case  of  the  salt-pans,  Lord  Mansfield  does  not  seem  to  have  consi- 
dered them  as  accessory  to  the  carrying  on  a  trade  ;  but  as  merely  the 
means  of  enjoying  the  benefit  of  the  inheritance.  He  says,  "  The  salt- 
spring  is  a  valuable  inheritance,  bat  no  profit  arises  from  it  unless  there 
be  a  salt-work  :  which  consists  of  a  building,  Src.  for  the  purpose  of 
containing  the  pans,  Src.  which  are  fixed  to  the  ground.  The  inheritance 
cannot  be  enjoyed  without  them.  They  are  accessaries  necessary  to  the 
enjoyment  of  the  principal.  The  owner  erected  them  for  the  benefit  of 
the  inheritance."  Upon  this  principle  he  considered  Ihem  as  belonging 
to  the  heir,  as  parcel  of  the  inheritance  for  the  enjoyment  of  ^\  hich 
they  were  made,  and  not  as  belonging  to  the  executor,  as  the  means  or 
instrument  of  carrying  on  a  trade.  If,  however,  he  had  even  consi- 
dered them  as  belonging  to  the  executor,  as  utensils  of  trade,  or  as 
being  reraoveable  by  the  tenant,  on  the  ground  of  their  being  such  uten- 
sils of  trade,  still  it  would  not  have  affected  the  question  now  before  the 
Court,  which  is  the  right  of  a  tenant  for  mere  agricultural  purposes  to  re- 
movebuildings  fixed  to  the  freehold,  which  were  constructed  by  him  for 
the  ordinary  purposes  of  husbandry,  and  connected  with  no  description 
of  trade  whatsoever :  and  to  which  description  of  buildings  no  case 
(except  the  Nisi  Prius  case  of  Dean  and  JllaJjj  {Esp.  Ti.)  ])efore  Lord 
hctiijon,  and  which  did  not  undergo  the  subsequent  review  of  himself 
and  the  rest  of  the  Court)  has  yet  extended  the  indulgence  allowed  to 
tenants  in  respect  to  buildings  for  the  purposes  of  trade.  In  the  case  in 
Bull.  N.  P.  3i.  of  Culling  v.  Tufncll,  before  Lord  C.  J.  'J'rcb//  at  Nisi 
Prius,  he  is  stated  to  have  holden  that  the  tenant  who  had  erected  a 
barn  upon  the  premises,  and  put  it  upon  pattens  and  blocks  of  timber 
lying  upon  the  ground,  but  not  fixed  in  or  to  the  ground,  might  fr/  the 
custom  of  the  country  take  them  away  at  the  end  of  his  term.  To  be 
sure  he  might,  and  that  without  any  custom  ;  for  the  terms  of  the 
statement  exclude  them  from  being  con.^idered  asfxiurcs  ;  "  they  were 
not  fixed  in  or  to  the  groiuid."  In  the  case  of  FitzherLert  v.  Shaw, 
1  H.  Bl.  258,  we  have  only  the  opinion  of  a  very  learned  Judge  indeed, 
Mr.  J.  Gould,  of  what  would  have  been  the  right  of  the  tenant,  as  to 
the  taking  away  a  shed  built  on  brick-work,  and  some  posts  and  rails 
which  he  had  erected,  if  the  tenant  had  done  so  during  the  term  :  but 
as  the  term  was  put  an  end  to  by  a  new  contract,  the  question,  what 
the  tenant  could  have  done  in  virtue  of  his  right  under  the  old  term,  if 
it  had  continued,  could  never  have  come  judicially  before  him  at  Nisi 

(a)  3  Esut'a  R.  53. 


Sect.  T.]         Of  Waste ;  nhncin  of  Fi.\  hires.  227 

Prlus  :  and  when  tliiit  (incstioii  was  olFcrcil  to  he  ar^'iicd  in  tlie  Court 
above,  llic  counsel  utre  hloppctl,   as  the  question  was  c.xcludcil  by  tlie 
new  agreement.     As  to  the  case  of  Pr/j/oH  v.  liobart,  2  East's  K.  88. 
it  was  the  case  of  a  varnlsh-housc,  willi  a  brick  foundation  let  into  the 
ground,  of  which  tlio  wood-work  liad  been  removed  from  another  place, 
wlure  the  dctVndant  hail  carried  on  ins  trade  w  ilh  it.  It  was  a  buiUlinq 
for  the  purpose  of  trade;  ami  tlie  tenant  was  entitled  to  the  same  indulg- 
ence in  t!iat  case,  which,  in  the  cases  already  considered,  had  been  al- 
lowed to  other  buiUlirvjjs  for  the  purjxjscs  of  trade,    as    furnaces,  vats, 
coppers,  engines,  and  the  like.     Ami  thou:;li  I  .ord  AV/;//o/i,  after  put- 
tin;^  the  case  upon  the   >;roiuid  of   leaiiini;,   whicli  obtains  in  modern 
times,  in  favour  of  tlie  inl(  nuts  of  trade  ;  upon  w  iiich  ground  it  miLjht 
be  properly  supported,  i^ocs  further,  and  extends  the  indulgence  of  the 
law  to  the  erection  of  green-houses  and  hot-houses  by  nurserymen,  and 
indeed  by  implication  to  buildings  by  all  other  tenants  of  lands :  there 
certainly  exists  no  decided  case,  and,  l  believe,  no  recognized  opinion  or 
practice  on  eitlier  side  of  Westminster  Hall,  to  warrant  such  an  exten- 
sion. The  A7.5/  Priiis  c^i'c  o{ Dean  v.  y///r7/y( reported  in  Mr.  ll'oodfntrs 
book,  and  Mr.  Kspiii<isse''sy  2  vol.  11.)  is  a  case  of  the  erection  and  re- 
moval by  the  tenant  of  two  sheds  called  Dutch  barns,  which  were,  I 
will  assume,  unquestionable  fixtures.     Lord  Ktnjjon  says,  "  The  law 
will  make  the  most  favourable  construction  for    the    tenant,  vhcrc  he 
lias  made  necessary  and  useful  crcelicns  for  the  benefit  of  his  trade  and 
manvfactuTc,^niX  which  enable  him  to  carry  it  on  \n  ith  more  advantage. 
It  has  been  so  holdcn  in  the  case  of  cider-nulls  and  otiier  cases ;  and  I 
hhall  not  narrow  the  law ,  but  hold  erections  of  tliis  sort  made  for  the 
benefit  of  trade,  or  constructed  as  the  present."  I  -ord  K.  here  uniformly 
juentionsthc  benefit  of  trade,  as  if  it  were  a  building  subservient  to  some 
purposcsof  trade  ;  and  never  mentions  agriculture,  for  the  purposes  of 
which  it  was  erected,     lie  certainly  seems,  however,  to  have  thought 
that  buildings  erected  by  tenants  for  the  purposes  of  farming,  were, 
or  rather  ought  to  be  governed  by  the  same  rules   which  had   been  so 
long  judicially  holdcn  to  apply  to  buildings  for  the  purposes  of  trade. 
But  the  case  of  buildings  for  trade  has  been  always  put  and  recognized 
as  a  kno/in  allonrd  exeep'ion  froiu  th" general  ride,  which  obtains  as  to 
other  buildings  ;  and  the  circumstance  of  its  being  so  treated  and   con- 
sidered, establishes  the  existence  of  the  general  rule  to  which  it  is  con- 
sidered as  an  exception.    To  hold  otiicrwise,  and  to  extend  the  rule  in 
favourof  tenants  in  the  latitude  contended  for  by  the  defendants,  would 
be,  as  appears  to  me,  to  itil  ro<lurc  a  dangerous  innovation  into  the  relative 
state  ofrights  anil  interests  hoMcn  to  subsist  between  landlords  and  ten- 
ants    But  its  danger  or  probal)Icmisrhicf  isnot  so  properly  a  considera- 
tion fora  court  of  law,aswhetlierthcadoptionofsuchadoctrine  would 
be  an  mnovaiion  at  aff ;  and  beingof  opinion  that  it  would  be  so.  andc<vi- 


228  Of  Waste ;  wherein  of  Fixtures.        [Ciiap.  IX. 

trai  y  to  the  uniform  current  of  legal  authorities  on  the  subject,  we  feel 
ourselves,  in  conformity  to  and  in  support  of  those  authorities,  ol^liged 
to  pronounce  that  the  defendant  had  no  right  to  take  away  the  erec- 
tions statetl  and  described  in  this  case. 

If  a  house  be  destroyed  by  tempest,  lightning,  or  the  like,  which  is 
the  act  of  Providence,  it  is  no  waste  :  and  the  stat.  6  Jnn.c.  31.  enacts, 
tl:at  no  action  shall  be  prosecuted  against  any  person  in  whose  house 
any  fire  shall  accidently  begin  ;  with  a  proviso  that  the  Act  shall  not 
defeat  any  agreement  between  landlord  and  tenant  {a).  It  seems  to 
be  somewhat  doubtful  whether  tenant  by  the  curtesy  is  within  this 
statute.     So,  of  tenants  in  dower  (b). 

Waste  may  be  done  in  houses,  by  pulling  them  down,  or  suffering 
them  to  be  uncovered,  whereby  the  rafters  or  other  timber  of  the  house 
are  rotten  ;  but  the  bare  suiTering  them  to  be  uncovered,  without  rot- 
tin"-  the  timber,  is  not  waste.  So,  if  a  house  be  uncovered  when  the 
tenant  cometh  in,  it  is  no  waste  in  the  tenant  to  suffer  the  same  to  fall 
down.  But  though  the  house  be  ruinous  at  the  tenant's  coming  in,  yet 
if  he  pull  it  do\\  n  it  is  waste,  unless  he  re-edify  it  again  :  yet  if  a  house 
built  de  novo  was  never  covered  in,  it  is  no  waste  to  abate  it.  Also,  if 
glass-windows  (though  glazed  by  the  tenant  himself)  he  broken  down 
or  carried  away,  it  is  waste ;  for  the  glass  is  part  of  his  house.  If  the 
house  be  uncovered  by  tempest,  the  tenant  must  in  convenient  time 
repair  it:  and  though  there  be  no  timber  growing  upon  the  ground, 
yet  the  tenant  must  at  his  peril  keep  the  house  from  wasting  (c). 

The  law  favours  the  support  and  maintenance  of  houses  for  the  habi- 
tation of  mankind  :  therefore  if  two  or  more  joint-tenants  or  tenant  in 
common  be  a  house  of  habitation,  and  the  one  will  not  repair  the 
house,  the  other  shall  have  by  the  law  a  writ  of  dc  reparatione  facien- 
d/i,  and  the  writ  saith  ad  sustentationcm  cjusdcm  domus  ienecmtur.  So 
it  is,  if  the  lessor,  by  his  covenant,  undertake  to  repair  the  houses,  yet 
the  lessee  (if  the  lessor  doth  it  not)  may  with  the  timber  growing  up- 
on the  ground  repair  it,  though  he  be  not  compellable  thereunto  (c/). 

But  if  the  tenant  do  or  suffer  waste  to  be  done  in  houses,  yet  if  ho 
repair  them  before  any  action  brought,  there  lieth  no  action  of  waste 
against  him  ;  but  he  cannot  plead  quod  non  fecit  vastujn,  but  the  special 
matter  (<").  For  the  tenant  may  cut  trees  to  mend  houses,  Si^c.  and  to 
do  reparation  :  but  if  houses  decay  by  the  default  of  the  tenant,  to  cut 
trees  to  amend  them  is  waste  (/).  Not  so,  however,  if  they  were 
ruinous  at  the  time  of  the  lease  made  :  but  if  a  frame  was  once  covered 
in  the  time  of  the  lessor,  and  the  lessee  erase  it  after  his  death,  the 
heir  shall  have  waste  (g-). 

{(I)  2  lil.Com.  281.  (5)  1  Inst.  .57. ,-..  n.  1  Cruise  VI.  c.  3.  s.  Ii9. 

{c)  Co.  Lit.  53.  J,  and  notej.  (d)  Co.  Lit.  53.  (c)  Ibii.  53,  4.  and  notei. 

(/)  F. H.a. 29.  K.  Cf ;  lOid.  OO.Q.  Dyer 35. 


Socl.  I.]  Of  Wasle.  225) 

The  tenant  cuts  down  trees  for  reparation?,  and  sells  them,  and  after- 
wards  buys  them  ;l^^■lin  and  eniplojs  then>  alioiit  nccefh.iry  reparali:)ns ; 
yet  it  is  waste  by  the  veiidifixn:  Iicc.uiiiof  -:H  trees  :iiul  withlhc  mo- 
ney cover  the  house  («). 

If  the  tenant  of  a  dove-liouse,  uarren,  pari:,  vivary  [a  fi^hpolld], 
cstangtics,  or  tlie  like,  ilo  take  so  many  that  such  fiiH'icient  store  be  not 
left  as  he  found  when  he  came  in,  this  is  waste  ;  and  to  suiier  the  pal- 
ins?  to  decay,  whereby  the  deer  is  dispersed,  is  waste  (A). 

If  teiuiit  cut  (h)wn  or  destroy  any  fruit-trees,  grouinq;  in  the  ijnr- 
den  or  orchanl,  it  is  waste  ;  but  if  such  trees  i;row  upon  any  of  tiie 
i;ri)u!i  1  which  tiic  tenant  hoMetli  out  of  the  i;ardcn  or  orcliard,  it  is  no 
uaste  (r). 

To  suffer  the  gcrmins  \a  i^crmina,  \.\\v.  younu;  roots  of  trees]  upon 
the  roots  of  tiie  trees  to  be  again  newly  dc.ftroycd,  (havini;  before  felled 
the  trees)  it  is  new  waste:  and  treble  damages  shall  be  recovered  for 
both  {(I). 

AVaste  may  also  be  committed  in  respect  of  timber  trees,  (e-/^.  oak, 
ash,  and  elm,  and  these  be  timl)cr  trees  in  all  places)  eithir  by  cutting 
them  down  or  topping  them,  or  doing  any  act  wherel)y  the  tiud)er 
may  decay  ;  for  timber  is  part  of  the  inheritance.  Also  in  countries 
uhere  timber  Is  scant,  and  beech  or  the  like  are  converted  to  building 
for  the  habitation  of  man,  or  the  like,  they  are  all  accounted  timber. 
Cutting  down  of  willows,  beech,  birch,  asp,  maple,  or  the  iike,  standing 
in  the  defence  and  safeguard  of  the  house,  is  destruction  :  so,  if  tiiere 
be  a  quickset  fence  of  whitethorn,  if  the  tenant  stub  it  up,  orsuHerit  to 
be  destroyed,  this  is  destruction  ;  and  for  all  these  and  the  like  ilestruc- 
tions,  an  action  of  wa^tc  licth.  Jiiit  culling  up  of  quicksets  is  not 
waste,  if  it  preserves  the  spring ;  nor  is  catling  of  ash  under  the 
growth  of  twenty  years  waste  (f ). 

With  respect  to  what  wood  shall  be  deemed  timber  (by  which  is 
meant  such  trees  only  as  i.rc  fit  to  be  used  in  building  and  rcjjairing 
houses)  it  is  the  custom  of  the  country  which  makes  some  trees  timber, 
which  in  their  nature,  generally  speaking,  are  not  so,  as  horse-rhesnut 
and  lime-trees  :  so  of  birch,  beech,  and  asp;  and  as  to  pollards,  not- 
withstanding what  is  said  in  Phnd.  470.  that  these  arc  not  timber,  and 
tliat  tithes  are  to  be  paid  of  their  loppings,  (which  ould  not  be  if 
pollards  were  timber,)  yet  if  the  bodies  of  them  be  soimd  and  cjood,  I 
incline  to  think  them  timber;  sccus  if  not  sounti,  they  b;ing  in  such 
case  fit  for  nothing  but  fuel.  Per  Lord  Clianccllor  King  :  So  wabn^t- 
trees,  where  of  considerable  value,  are  to  be  estinnlcl  as  tiniber  (  f). 

As  to  pollards,  where  an  action  w;>  brought  to  recover  the  value  of 
certain  pollard  trees,  on  an  estate  [)urch:iscd  by  the  tlofcndaut  of  the 

,1^  Co.  Lit.  u»o»ii*.  (6;  Ibid.  6J.  J;  K.  N.  n.  57.  M.  f. 

'    Tr    V-    ■■•  -■■    1-'  v;  • : ^  1..   W;ns.  fol. 


232  0/  Common  of  Estovers ;          [Chap.  IX. 

iScc.  contrary  to  the  usual  course  of  husbandry,  and  from  cutting?  and 
damaging  the  hedge-rows,  &c.  The  Court  observed  that  though  there 
Avas  no  case  of  this  sort  upon  a  tenancy  from  year  to  year,  yet  the  prin- 
ciple applies  equally  to  such  a  tenancy  as  to  a  lease  for  a  longer  term. 
The  Judges  have  uniformly  said  in  modern  times  that  a  tenant  from 
year  to  year  mast  treat  the  farm  in  a  husband-like  manner,  according 
to  the  custom  of  the  country  ;  and  the  Court  must  give  its  aid  equally 
in  that  case,  with  the  qualification  that  he  is  not  to  remove  any  thing 
except  according  to  the  custom  of  the  country  {a). 

[See  also  with  respect  to  timber  the  following  Section.] 

Sectio]^^  II.      Of  Common  of  Estovers ;    wherein  of  Wood. 

Common  of  stovers,  or  eslouviers,  that  is  necessaries,  or  materials 
(from  estofj'er  to  furnish,)  is  a  liberty  of  taking  necessary  Avood  for  the 
use  and  furniture  of  a  house  or  farm  from  oif  another's  estate.  Es- 
tovers are  three  kinds  in  law,  and  are  incident  to  the  estate  of  every 
tenant,  whether  for  life  or  years  ;  but  not  at  will,  for  such  estate  is  too 
mean  (h). 

The  Saxon  word  bote  (c)}  which  signifies  allowance  or  compensa- 
tion, is  used  by  us  as  synonymous  to  the  French  estovers,  and  therefore 
housp-bote  is  a  sufficient  all-",wance  of  wood  to  build  or  repair  the 
house,  or  to  burn  in  it,  which  latter  is  sometimes  called  fire-bote ; 
plough-bote  and  cart-bote  are  wood  to  be  employed  in  making  and 
repairing  all  instruments  of  liusbandry,  as  ploughs,  carts,  harrows, 
rakes,  forks,  <?^r.  (c/)  ;  and  hay-bote  or  hedge-l^ote  is  Mood  for  re- 
pairing hedges  or  fences,,  as  pales,  stiles,  and  gates,  to  secure  inclo- 
surcs.  These  botes  or  estovers  must  be  reasonable  ones,  and  such  any 
tenant  or  lessee  may  take  oif  the  land  let  or  demised  to  him,  without 
waiting  for  any  leave,  assi2:nment,  or  appointment  of  tljc  lessor,  unless 
he  be  restrained  by  special  covenant  to  the  contrary,  (which  is  usually 
the  case)  (^ ) ;  for  house-bote,  hay-bote,  and  fire-bote,  do  appertain 
unto  a  termor  of  common  right,  and  he  may  take  Avood  for  the  same  ; 
but  if  the  tenant  take  more  house-bote  than  needful,  he  may  be  pun- 
ished for  waste  (/). 

Common  of  estovers  cannot  be  appendant  to  land,  unless  it  be  J)y 
prescription ;  but  to  a  house  to  be  spent  there.  Therefore,  though  it 
be  saiil,  that  a  custom  that  if  the  house  fall,  the  materials  shall  be  the 
tenant's,  would  not  be  good;  yet  when  a  house,  having  estovers  ap- 
pendant or  appurtenant  is  blown  down  by  wind,  if  the  owner  rebuild 
it  in  tlie  same  place  and  manner  as  before,  his  estovers  sJiall  continue. 

(a)  IG  A'es.  Jim.   173.  (6)  Co.  Lit.  122.  a.  2.  BJ.  Com.  35.  (c)  Ibid. 

{«*)  Wood's  1ds,L  Zi4.  (t)  F.  :N.  B.  59.  HI.  (f)  Terms  de  Ley. 


Sect.  IT.]  nhcrcin  of  Wood.  233 

So,  if  he  alld-  the  rooms  and  chanibcr?,  uitlioiif  iiiakin;;  ik  w 
chimnics  :  hut  if  he  erect  any  new  chimnies  he  w  ill  not  l»e  allnwcd  to 
js-peiid  any  csltni  rs  in  sntli  new  chinniie5  (a).  Hut  a  proscription  to 
liave  c'-lovt IS  not  only  for  rcpairill^;  l)nt  hiiildii);;  new  houses  on  tlui 
lanil  is  t;()0(l ;  yit  it  seems,  if  a  man  hive  conuiion  of  estovers  hy 
grant,  he  cainiot  huild  now  houses  lo  iiave  common  of  estovcrfi  for 
those  hoiisrf>  (';)• 

It  may  not  here  ho  superfluous  to  explain  tlic  meanini^  of  the 
terms  (ippnulant  and  appvrtriiavt  (r). — A  thing  nppcndnnf  is  tliat  wliich 
heyond  nuniiory  has  heloni'^cil  lo  anotlur  tiiiui;  njore  wortliy,  winch  it 
aijrees  with  in  its  nature  and  cpiality.  'i'hrrefjre  a  common  of  tiirhnry 
may  he  appendant  lo  a  house  ((/) ;  for  a  thin*4  incorporeal  miy  he  ap- 
pendant or  appurtenant  to  a  thin;^  corporeal;  hula  thing  rorporr-d 
catmot  he  appendant  to  a  IJiiri!^  corporeal  osland  catniot  he  aj-pcndant, 
to  land  :  and  common  appendant  must  he  hy  prescription,  for  itcaniiot 
begin  at  this  day  (r).  A  thing  nppurlcnaril  is  that  which  coinmencef; 
at  this  day  ;  as  if  a  man  at  this  tlay  grant  to  one  common  of  estovers, 
or  of  turhary,  in  fee-simple,  to  hurn  in  his  manor  ;  and  if  he  make  a 
i'eofl'ment  of  the  manor  the  common  shall  pass  lo  the  fcojlce  (7  ). 
Common  appurtenant  therefore  is  claimahlc  hy  an  existin,:^  ^:rant  ;  as 
Mcll  as  hy  prescription  :  which  always  implies  a  jjrant ;  and  a  right  of 
common  hy  prescription  may  be  regulated  by  custom  (^'^). 

The  lord  may  have  the  land  of  his  tenant  common  appendant  lo  his 
own  demesnes  :  and  occupiers  of  land  may,  by  custom,  c.'aim  a  ri;;ht 
in  nlicno  solo  {/i)  ;  thouf^h  iu!»al)itant?  cannot,  for  inlialiitancy  is  too 
vague  a  description,  and  cxtenilij  lo  many  others,  besides  the  actual 
occupier?  »)f  ho;iscs  or  land  (/"). 

If  a  man  have  couunon  of  estovers  in  the  \^oods  of  another.,  and  lit 
wlio  is  tenant  and  owner  of  the  wood  cut  down  all  the  wood,  he  w  h.o 
ought  lo  have  the  estovers  shall  not  have  an  action  of  waste  hut  slinll 
have  assise  of  his  estovers  (A).  Trespass  also  would  Ho  and  i.e  a  bcl, 
ter  remedy  (/). 

If  the  tenant  who  hath  common  of  estovers  shall  wo  tliem  to  rwi y 
other  purpose  than  he  ought,  he  that  owns  tlie  wood  may  l)ring  trt- 
pass  against  him;  as  where  one  giant  twenty  loads  of  wood  to  he  taken 
yearly  in  such  a  wood,  ten  loads  to  hurn,  and  ten  to  repair  paks;  here 
he  may  cut  and  take  the  wood  for  tlie  pahs,  thotigli  they  need  no 
amending,  but  then  he  must  keep  it  for  that  u?e  {m). 

So,  where  two  elms  were  cut  down  for  the  purpose  of  repairs,  ono 

{n)  to  Lit.  121.  b.  F.  X   H.  IPO.  C   b.  li  Mod.M.  4  Hip.  87.  4  I.cun.3'J3. 

{/>)  Cro.  Jar.  25.  F.  N.  B.  180  H.  (cj  Co.  Lit  i:i.  ti.  (H^  \  RoJ.  230.  |.  3«. 

lliid   1.  bO.  Ibid.  396.  I.  42.  (r>  Co.  l.U.  121.  b.  1  Vent.  407.  f.  V.  H.  Ml.  N. 

(O  Cro.  Ctr  4112  (g)  2  IaI.  U«j  m.  1  IRx  .     (A;  F.  K.  H.  M   0.  c.  {ij.i  Bl.  R.  928 

(<r)  F.  X.  B.  50.  A.  Ibid.  176.  F   d.  (/,  I2Mod.  a7J.  (m)  9  Rep.  I  in. 


234  Of  Common  of  Estovers ;  [Chap.  IX. 

of  which  only  was  used,  it  was  said  that  although  that  tree  which  was 
not  employed  [and  which  had  been  felled  five  years]  was  more  than 
sufficient  to  repair  the  house  ;  yet  seeing  that  the  tenant  cut  it  down 
for  that  purpusc,  and  perad venture  did  not  know  what  would  serve  for 
that  purpose,  it  was  not  any  forfeiture;  for  it  had  been  judged,  that 
■where  one  cut  down  wood  to  make  hedges,  and  used  the  greater  part 
thereof  in  hedging,  yet  for  the  rest  that  was  cut  down  for  that  pur- 
pose, no  tithes  shall  be  paid  (a). 

Though  the  tenant  may  cut  down  and  take  sufficient  Avood  to  re- 
pair walls,  pales,  fences,  hedges,  ^^c.  as  he  found  them,  yet  he  may  not 
do  so  to  make  new  ones  {b). 

The  tenant  may  cut  down  dead  wood;  and  it  is  not  waste  to  fell 
seasonable  wood  which  is  used  to  be  felled  every  twenty  years,  or 
within  that  time  (r) ;  but  oaks  cannot  be  said  to  be  seasonable  wood, 
whith  are  passed  the  age  of  twenty  years ;  but  by  a  custom  in  any 
place  where  is  plenty  of  wood  (timber),  oaks  under  twenty  years  may 
be  seasonable  wood  ;  and  such  custom  may  bealledgcd  in  the  wood 
itself  (d), 

A  termor  may  cut  the  underwood  growing  under  the  great  woods 
and  tall  woods  (r)  :  but  if  there  be  not  any  tall  wood,  then  he  cannot 
cut  the  underwood  (/) ;  for  where  waste  was  brought  for  topping  and 
lopping  twenty  ashes  and  twenty  elms,  on  demurrer  it  was  adjudged 
for  the  plaintiir(fi').  It  has  however,  notwithstanding,  been  held  to 
be  a  good  custom,  that  cop5'hoIders  in  fee  shall  have  the  loppings  of 
pollengers,  and  the  lord  cannot,  in  such  case,  cut  the  trees  down,  for 
that  would  deprive  the  copyholder  of  the  future  loppings.  [Pollengers 
or  pollards  are  such  trees  as  have  been  usually  cropped,  therefore 
distinguished  from  timber-trees  (/<)•]  And  it  has  been  resolved  that 
by  the  common  law,  a  copyholder  may  cut  off  the  under  boughs,  for 
such  lopping  cannot  cause  any  waste  (/). 

Though  the  termor  hath  of  common  right  oaks,  elm,  ash,  <?-c.  for 
repair  of  the  house,  and  underwood,  (<^'r.  for  inclosures  and  firing,  yet 
it  is  said  he  cannot  cut  either  oaks  or  ash  for  fire- wood  ;  but  the  ciittiiig 
at  the  age  of  seven  years  is  not  waste  (A). 

If  a  man  cut  wood  to  burn,  where  he  hath  suflicient  dead  wood,  it 
is  waste  (/). 

A  rector  may  cut  dow  n  timber  for  the  repairs  of  the  parsonage- 
house,  or  of  the  chancel,  but  not  for  any  common  purpose;  and  if  it 
is  the  custom  of  the  country,  he  may  cut  down  underwood  for  any 
purpose,  but  if  he  grubs  it  up  it  is  waste.     He  may  cut  down  timber 


('«;  Cro.  F.liz.  109. 

(h)  1  Ui<*.  :j:i.  Wood's  Iiist 

.  i25 

(c)  F.  N.  B.  59.  M. 

i'l)  n)id.  (). 

ix)  V.  X.  B.  60.  E. 

(/)  Ibid,  b- 

'■     '  !...  Car.  C79. 

(A)  i'lnrd.  4S?. 

'•;  Cro-EHz. 'jsr 

-    B,59.  2<A. 

f/;  Ibid.'Nl. 

Skction  il.J  ivhcriin  of  J  food.  235 

likcuisc  for  rc[)air?n'4  any  oM  pews  tli.it  hclorii;  to  the  rectory  ;  and  he 
«;  also  entitled  to  holes  for  repairing;  hariisaml  outhouses  hehin^iii'^  to 
Hill  parsonage  («).  And  a  parson  or  prchendary  shall  hare  a  writ  of 
uasle  upon  their  lease  (b). 

It  is  true,  that  the  first  owner  of  the  inheritance  //»  f55c  shall  have 
tiniher  blown  down,  but  as  an  estate;  in  contin^i^ency  is  no  estate,  and 
the  trees  nuist  become  the  property  of  sjnicbody,  theieforr  tlie  lirst  re- 
inaindernian  of  the  inheril;irice  in  beinu;  takes  them  (r). 

So,  with  respect  to  the  case  of  a  copyholder,  u  ho  has  only  a  porsrssory 
property  in  th»'  timber  trees,  of  which  if  severed  from  the  Irrehuld  iiy 
tempest  or  olherw  i-^e,  liie  j)roperty  will  be  in  tin-  lord  ;  and  a  ciistoni 
for  the  tenant  to  claim  such  trees  wouhl  be  a  h;ird  one,  and  so  likewise 
of  tiie  materials  of  tlie  houte  ((/).  In  eilher  case,  bcint;  thini;s  annexed 
to  the  inheritance,  the  severance  shall  not  transfer  the  j)roperty ;  this 
therefore  is  to  be  understood  as  of  a  copyholder  not  of  inlieritiince  (<). 

For,  as  to  a  right  to  cut  down  timber  by  custom,  where  a  copy- 
holder hath  the  inheritance,  and  where  his  successor  comes  in  by  hln 
livjmination,  there  such  a  custom  n>ay  be  good  (/) :  bjit  a  custom  for 
a  copyholder  for  life  to  cut  down  and  fell  trees  w  as  held  not  to  be  good, 
unless  it  be  to  build  new  houses  on  tlie  land  (.^). 

A  custom  tliat  every  copyhold  tenant  miy  cut  down  trees  at  their 
will  and  pleasure,  is  unreasonable  atid  void,  for  then  a  tenant  at  will 
might  do  it ;  so  it  is  for  a  copyholder  for  life  to  do  it  ;  and  one  of  the 
reasons  given  is,  that  the  succeeding;  copyholder  would  not  have  w  here- 
withall  to  maintain  the  house  and  plough,  whicii  plainly  intimates, 
that  a  copyholder  may  cut  timber  to  make  raparations,  and  the  rather, 
Ijrcause  permissive  waste  is  a  forfeitine  in  him  (//). 

The  lord  may  cut  tlown  timber  trees,  leaving  suflicicnt,  and  t!ic 
custom  to  cut  makes  no  alteration  ;  for  it  has  been  resolved,  that  every 
copyholder  may  take  trees  for  house-botc  of  common  right ;  so  that 
the  laying  the  custom  seems  to  be  only  b}-  way  of  caution  (/). 

The  right  of  the  lord  to  take  trees  on  a  copyhold,  perhaps,  is  ren- 
dered somewhat  doubtful  by  the  reversal  on  error  brought  in  pariia- 
njent  of  the  judgment  in  the  case  of  Aahmcad  against  Rammer  (A). 

It  is  clear  that  a  copyholder  may  take  the  necessary  estovers  or  botes 
on  his  copyhold  without  a  special  custoju  (/). 

But  to  eiwble  him  to  make  them  on  o'l.rr  lands^  a  special  cistom 
must  be  shewn  (m). 

(a)  2  Atk  317.                      :&)  K.  X.  B.  CO.  K.                               :  A  •        ".  (d)  II  Mo.!.  'iS. 

fOUiid. -JS.                         (/)  Cio.Car.  £.'1.                      (f )  On*.  .Up.  :'•  (*)  GJ'joflS 

Tenures,  1J7.  rro.J.ic. 29.          •  (0  OilUcrt's  ToniirM,239.  ,'MI.M<:IR. 

]£  .Mod.  ;J7«.  Salt;  CHU  Unit,  162.  Cora.  Rep.  M.  I  I.d.  Ktyni  y<'  ,1)  l^iuym. 
<n>rt  fc  1 1  .Ma<i  Ci'                                          ;  >n;  i.  To.  ^^.  b. 


234  Of  Common  of  Estovers ;  [Chap.  IX. 

of  which  only  was  used,  it  was  said  that  although  that  tree  which  was 
not  employed  [and  which  had  been  felled  five  years]  was  more  than 
sufficient  to  repair  the  house  ;  yet  seeing  that  the  tenant  cut  it  down 
for  that  purpose,  and  perad venture  did  not  know  what  would  serve  for 
that  purpose,  it  was  not  any  forfeiture;  for  it  had  been  judged,  that 
■where  one  cut  down  wood  to  make  hedges,  and  used  the  greater  part 
thereof  in  hedging,  yet  for  the  rest  that  was  cut  down  for  that  pur- 
pose, no  tithes  shall  be  paid  (a). 

Though  the  tenant  may  cut  down  and  take  sufficient  wood  to  re- 
pair walls,  pales,  fences,  hedges,  ^c.  as  he  found  them,  yet  he  may  not 
do  so  to  jnake  new  ones  (A). 

The  tenant  may  cut  down  dead  wood ;  and  it  is  not  waste  to  fell 
seasonable  wood  which  is  used  to  be  felled  every  twenty  years,  or 
within  that  time  (r) ;  but  oaks  cannot  be  said  to  be  seasonable  wood, 
whifch  are  passed  the  age  of  twenty  years  ;  but  by  a  custom  in  any 
place  where  is  plenty  of  wood  (timber),  oaks  under  twenty  years  may 
be  seasonable  wood  ;  and  such  custom  may  bcalledgcd  in  the  wood 
itself  (d), 

A  termor  may  cut  the  underwood  growing  under  the  great  woods 
and  tall  woods  (r)  :  but  if  there  be  not  any  tall  wood,  then  he  cannot 
cut  the  underwood  (y) ;  for  where  waste  was  brought  for  topping  and 
lopping  twenty  ashes  and  twenty  elms,  on  demurrer  it  was  adjudged 
for  the  plaint iif  (^'^).  It  has  however,  notwithstanding,  been  held  to 
he  a  good  custom,  that  copyholders  in  fee  shall  have  the  loppings  of 
pollengers,  and  the  lord  cannot,  in  such  case,  cut  the  trees  down,  for 
that  would  deprive  the  copyholder  of  the  future  loppings.  [Pollengers 
or  pollards  are  such  trees  as  have  been  usually  cropped,  therefore 
distinguished  from  timber-trees  (/<).]  And  it  has  been  resolved  that 
by  the  common  law,  a  copyholder  may  cut  off  the  under  boughs,  for 
such  lopping  cannot  cause  any  waste  (/). 

Though  the  termor  hath  of  common  right  oaks,  elm,  ash,  <f-r.  for 
repair  of  the  house,  and  imderwood,(<rr.  for  inclosures  and  firing,  yet 
it  is  said  he  cannot  cut  either  oaks  or  ash  for  jQre-wood  ;  b:it  the  rutting 
at  the  age  of  seven  years  is  not  waste  (A). 

If  a  man  cut  wood  to  burn,  where  he  hath  sufficient  dead  wood,  it 
is  waste  (/). 

A  rector  may  cut  dow  n  timber  for  the  repairs  of  the  parsonage- 
house,  or  of  the  chancel,  but  not  for  any  common  purpose;  and  if  it 
is  the  custom  of  the  country,  he  may  cut  down  underwood  for  any 
purpose,  but  if  he  grubs  it  up  it  is  waste.     He  may  cut  down  timber 

(a)  Cro.  F.liz.  409.  (i)   1  In-t.  .'):!.  Wood's  IiK-t.  0D5  (c)  F.  K-  B.  59.  31. 

i'i)  Ibid.  d.  .  i,x)  V.  :>' .  n.  CO.  E.  ,  {/)  Ibid,  b- 

'■     'K'.Car.  679.    '  .  (A)  Plord.  4S3.  '••.  Cso.  E.'iz. 'JST 
■    B.  99.  .NVi                   &,  ibid.'Nj. 


yKCTlON  U.J  irherrin  of  I  food.  235 

Jikcvvi.sc  for  rcpairJn-^  any  oM  prus  f l;:it  fx-loui;  to  the  n-ctorv  ;  and  lie. 
is  also  entitled  to  hotos  for  rcpairirii;  Ijurns  ami  oiitlinuscs  belon^iiiu;  to 
tlkC  pars.Hiagc  (a).  And  a  paiiori  or  prclxMulary  shall  hare  a  writ  of 
uastc  upon  their  lease  (h). 

It  is  true,  that  the  first  owner  of  the  inlirritanre  //j  f55c  slia II  have 
timber  Mown  down,  Init  as  an  estate,  in  continirency  is  no  estate,  and 
the  trees  must  become  the  proi)erl y  of  sjmeI)ody,  therefore  the  hrst  re- 
mainder-man of  the  inheritance  in  being  lakes  them  (r). 

So,  with  respect  to  the  case  of  a  copyholder,  w  ho  has  only  a  ])ossessory 
property  in  the  tiniber  trees,  of  wiiich  if  severed  from  the  freehold  by 
tempest  or  otherwise,  the  property  will  be  in  the  lord  ;  and  a  custom 
for  tiie  tenant  to  claim  such  trees  would  be  a  hard  one,  and  so  likewise 
of  the  materials  of  the  hourc  ((/).  Innthercase,  beini;  things  annexed 
to  the  inheritance,  the  severance  shall  not  transfer  the  j)roperly ;  this 
therefore  is  to  be  understood  as  of  a  copyholder  not  of  inlieritance  (<•). 

J"or,  as  to  a  right  to  cut  down  timber  by  custom,  where  a  copy- 
holder hath  the  inheritance,  and  wlierc  his  successor  comes  in  by  his 
nomination,  there  such  a  custom  may  be  good  (/) :  but  a  custom  for 
a  copyholder  for  life  to  cut  down  and  fell  trees  w  as  held  not  to  be  good, 
unless  it  l)e  to  build  new  houses  on  the  land  (^). 

A  custom  that  every  copyhold  tenant  may  cut  down  trees  at  their 
will  and  pleasure,  is  unreasonable  and  void,  for  then  a  ten.uitat  will 
might  do  it ;  so  it  is  for  a  copyholder  for  life  to  do  it  ;  and  one  of  the 
reasons  given  is,  that  the  succeeding  coj)yhoIdcr  would  not  have  w  Jierc- 
withall  to  maintain  the  house  and  plough,  which  plainly  intimates, 
that  a  copyholder  may  cut  timber  to  make  raparations,  and  the  rather, 
because  permissive  waste  is  a  forfeiture  in  him  (//). 

The  lord  may  cut  down  timber  trees,  leaving  sufTicicnt,  and  the 
custom  to  cut  makes  no  alteration  ;  for  it  has  been  resolved,  that  every 
copyholder  may  take  trees  for  house-bote  of  common  right ;  so  that 
the  laying  the  custom  seems  to  be  only  b}'  way  of  caution  (/). 

The  right  of  the  lord  to  take  trees  on  a  copyhold,  perhaps,  is  ren- 
dered somewhat  doul)tful  by  the  reversal  on  error  brought  in  parlia- 
ment of  the  judgment  in  the  case  of  Ashmcad  against  Ramrcr  (A). 

It  is  clear  that  a  copyholder  may  take  the  necessary  estovers  or  botes 
on  his  copyhold  without  a  special  custom  (/). 

But  to  enable  him  to  make  them  on  o*hrr  la/id'i,  a  special  cistom 
must  be  sliewn  (w). 

(a)  2  Atk.aiT.  (b)  F.  .\.  D.  CO.  K.  :    Atk.  7;.3.  (d)  II  MoJ.  «9; 

fOUiid.  95.  (/)  Cio.Car.  £.'1.  (c,  Cr<«.  Ijr.  r..  (A)  GJjPrtS 

Ttnures,l'J7.  fro.  J.ic.29.  ■    (•)  •Gilbert's  Tenures,  230.  ;')II.M<;I8. 

12  MoJ.  u78.Sal<i    CM  fl«l»,162.  Com.  Rep.  7«.  I  I.d.  U».viii  -V"'  i'i  I.rt.l.»)m. 

owe  t  II  iM«'l   fl"  ,'in;   iTo.  Sl.b. 


< 


236  Of  Common  of  Estoicrs.  j  Cliap.  IX. 

A<5  a  tenant  for  ufc  lias  a  right  to  wluit  may  be  sufficient  for  repairs 
and  botes,  care  iniist  be  taken  in  felling  timber  to  leave  enough  upon 
the  estate  for  that  j)iirpose  ;  and  whatever  damage  is  done  to  the  ten- 
ant for  lii'e  on  the  premises  by  him  held  for  life,  the  same  ought  to  be 
made  good  to  him  (a). 

Estovers  niay  be  granted  in  fee,  and  in  a  grant  of  estovers  the  grant- 
or may  take  the  trees  with  the  grantee.  Hflt  iinderw  ood  is  a  thing  of  in- 
heritance and  perpetuity,  and  may  be  granted  in  fee  by  copy  of  court- 
roll,  and  will  si)p{)ort  trespass  quare  clausnm  /regit ;  for  in  such  case, 
the  grantor  cannot  iViCddle  wWli  the  A\oods,  nor  can  his  lessee  :  for  he 
hath  entirely  granted  the  underwood,  and  not  estovers  or  so  many 
loads  of  wood. — A  grant  may  be  made  to  a  person  by  a  deed  to  w  hich 
lie  is  no  party  {h). 

If  the  lord  of  a  manor  cut  down  so  many  trees  as  not  to  leave  sufli- 
cient  estovers,  his  copyholder  may  bring  trespass  against  him,  and  re- 
cover the  value  of  the  trees  in  damages  ;  and  even  if  the  lord  leave  suf- 
ficirnt  estovers,  yet  he  shall  recover  special  damages,  viz.  for  the  loss 
of  his  umbrage,  breaking  his  close,  treading  down  his  grass,  ik.c.  for 
the  tenant  had  the  same  customary  or  possessory  interest  in  the  trees 
that  he  has  in  the  land  ;  and  if  the  lord  has  a  mind  to  cut  trees,  his  bu- 
siness is  to  compound  with  the  tenant  (r).  [But  see  Ashmccid  v.  liaiigcr^ 
ante.  ] 

The  lord  of  a  manor,  as  such,  has  no  right  without  a  cuslora  to  en- 
ter upon  the  copyholds  within  his  manor,  under  which  there  arc  mines 
and  veiiis  of  coal,  in  order  to  bore  for  and  work  the  same,  and  the 
copyholder  ma.y  maintain  trespass  against  him  in  so  doing  {^d). 

But  an  enclosure  of  the  common  by  the  lord  may  be  no  interruption 
of  the  tenant's  enjoyment  of  their  coinmon  of  estovers  ;  nay,  probably 
it  may  be  better  for  such  enclosure.  If  indeed,  by  such  enclosure,  their 
common  of  estovers  were  affected,  or  they  were  interrupted  in  the  enjoy- 
ment of  it,  they  might  certainly  bring  their  action  ;  and  the  lord  in  such 
case,  could  not  justify  such  enclosure  in  prejudice  to  those  rights  {e)» 

If  the  lord  of  a  manor  plant  trees  on  a  common,  the  commoner  has 
no  right  to  abate  them,  though  there  be  not  a  sulKciency  left  ;  his  re- 
medy is  by  action.  But  if  the  lord  so  plant  as  to  destroy  the  common, 
such  an  act  >vould  be  considered  as  a  nuisance,  and  the  commoner 
migiit  abate  it  (/). 

The  distinction  seems  to  be  this  :  if  the  lord  of  the  manor  make  a 
hedge  round  the  common,  or  do  any  other  act  that  entirely  excludes 
the  commoner  from  exercising  his  right,  the  latter  may  do  whatever  is 
necessary  to   let  liimself  into  the  common  ;  but  if  the  commoner  caa 

(u)  3  H.  VVni'.  2CS.  (6;  do.  Eliz.  413.  (c)  12  Mod.  373.  Hul.  N.  P.  85.  s    C. 

id)  10  Ka»t,  loit.  (t)  G  T.  R   478.  (f)2  Bos.  &  Pull.  U.  \i. 


Sect.   III.]  Of  Emlhments.  t^l 

get  at  the  comruon,  and  enjoy  il  to  ;i  cprtain  extent,  and  his  right  he 
uicrt'ly  al)ricli;ed  l»y  the  act  of  the  l(»rd,  in  thai  case  his  remedy  i«  hy 
an  action  on  tiie  cise,  or  by  an  a^si^e,  anil  he  cannot  a'r^crt  Jii^  ri^hl  l»y 
any  act  of  his  own  («). 


S I  (  1 1  ( » .\   III.     Of  Evilhmii'As. 

The  Avord  caihlcniciits  is  dtrivcd  from  the  French  etnblai'cnrci'.c  bird, 
corn  sprung  or  put  aljovi-  s^roinid,  and  strictly  hi;.^nifi(s  tiic  profits  of 
sown  land  ;  l)iit  the  doctrine  of  enihlenjcnts  extends  nut  only  (o  corn 
sown,  but  to  roots  piaiited  or  other  aimual  artificial  profits  (^). — Hops 
j^rowini;;  out  of  ancient  roots  have  been  lield  to  l>c  like  cinblein'iits, 
uhich  siiall  go  to  the  hnshiuid  or  executor  of  tlie  tenant  for  life,  aiid 
not  to  him  in  remainder  ;  and  arc  not  to  be  coniparcd  to  apples  or  fruits, 
^vl)ic]l  i^row  of  themselves  (r). 

lait  it  is  otherwise  of  fruit-trccf,  grass,  and  the  like,  which  are  nut 
planted  annually  at  the  expense  and  lahoiir  cf  the  tenant,  but  .ire  ci- 
ther a  permanent  or  a  natural  profit  of  tlie  earth  :  for  when  a  man 
plants  a  tree,  he  cannot  be  presumed  to  plant  it  in  contemplation  trf 
any  present  profit  ;  but  merely  with  a  ]iro?pf:ct  of  its  being  ustful  to 
himself  in  future,  and  to  future  successions  of  tenants  (d). 

It  shall  l)e  intended  prima  facie,  that  the  property  of  the  corn  is  iti 
the  owner  of  llie  soil,  liut,  the  public  beinq;  interestctl  in  t!ic  produce 
of  corn  and  grain,  (among  other  reasons  for  tlie  rule)  emblements  go 
to  the  executor,  and  not  to  the  remainder-man  (r). 

In  some  cases,  indeed,  he  who  sows  the  corn  shall  liave  the  emble- 
ments, in  others  not. 

If  tenant  in  fee,  or  in  tail,  or  in  dower,  die  after  sowing  the  corn, 
and  before  severance,  his  executor,  or  administrator  generally  shall  have 
the  emblements  (/). 

Tenant  for  life,  or  his  representatives,  shall  not  be  prejudiced  by  any 
sudden  deterniinatiun  of  his  estate  ;  because  sucli  a  (lcterminati*»n  is 
contingent  and  uncertain. — Therefore,  if  a  tenant  f jr  his  own  life  .sows 
the  land,  and  dies  before  harvest,  his  executors  shall  have  the  enihle- 
nients  or  profits  of  the  crop  ;  for  the  estate  w  as  determined  by  tlic  act 
of  God,  and  it  is  a  maxim  in  the  law,  that  actus  Dri  rirmiui  fucit  inj.h 
riam.  The  representatives  therelure  of  the  tenant  for  life  shalt  have 
the  emblements,  to  compensate  for  tlie  lal)our  and  expense  of  tilling, 
manuring,  and  sowing  the  lands;  and  also  for  the  encouragement  of 

(rtJWillri.  Ml.  r,  T.  R.  4».  (6) :  Bl.  Com.  X'T.  !c    Cm  C«r.  5IS 

■^1  2  BI    Com.  V."^.  ;0  2S«un'l.  401.  I  P.  Wmt.  Jl.        <  <")  '"..t,    djj  ut.  Biew 


238  Of  Emhkmcnis.  [Cliap.  IX. 

lius])an(.lry,  -nluch  l)cina:  a  public  henclil,  loiding  to  the  increase  and    • 
plenty  of  provisiot!?,  oiiglit  to  have  the  utnicst  security  and  privilege 
that  the  law  can  give  it  {a). 

Thcrtfyrc  if  a  man  sous  land  an',1  lets  \x  for  life,  and  the  lessee  for 
life  die  before  Ihe  corn  be  severed,  his  execulor  shall  not  have  the  em- 
hlemenls,  but  he  in  reversion  ;  but  if  he  liiinscif  had  sowed  the  land 
an'l  died,  it  were  otherwise  (//). 

So,  if  tenant  for  life  sows  the  land,  and  grants  over  his  estate,  the 
gruntcc  liies  before  the  corn  severed,  such  grantee's  executor  shall  not 
have  tlie  corn  (r). 

So,  if  the  lessee  of  a  tenant  for  life  be  di.-seiscd,  and  the  lessee  of 
the  disseisor  sows  the  land,  and  then  the  tenant  for  life  dies,  and  he  in 
remainder  enters,  yet  he  shall  not  have  the  emi)lements,  but  the  lessee 
of  the  tenant  for  life  {cl). 

So  it  is  also,  if  a  man  be  tenant  for  the  life  of  another  and  cestui  que 
vie,  or  he  on  whose  life  the  land  is  held,  dies  after  the  corn  sown,  the 
tenant  pi/r  aider  vie  shall  have  the  emblements  (r). 

The  same  is  also  the  rule,  if  a  life  estate  be  determined  by  the  act 
of  law  {/), 

Therefore  if  a  lease  be  made  to  husband  and  wife  during  coverture 
(which  gives  theju  a  dcterminabie  estate  for  life)  and  the  husband  sows 
the  land,  and  afterwards  they  are  divorced  a  vinculo  matrimonii^  the 
husband  shall  have  the  emblements  in  this  case  ;  for  the  sentence  of  di- 
Torce  is  the  act  of  law. 

So  if  tenant  in  tail  give  or  grant  his  emblements  of  corn  growing  on 
the  ground  ;  the  donee  may  cut  and  take  them  after  the  death  of  the 
tenant  in  tail  [g). 

So  every  one  who  has  an  uncertain  estate  or  interest,  if  before  se- 
verance 01  ilie  corn,  his  estate  determine  either  by  the  act  of  God  or  of 
the  law,  he  shall  have  tlie  eml)leiuents,  or  they  shall  go  to  his  executor 
or  administrator  (/»)  ;  for,  so  it  is  in  all  cases  regularly,  where  a  man 
sows  land  wherein  he  hath  such  an  estate  as  may  perhaps  continue  un- 
til the  corn  be  ripe  (/). 

But  if  the  estate  be  determined  ])y  the  tenant's  own  act,  as  by  for- 
feiture by  tenant  for  life  for  waste  committed ;  or  if  a  tenant  during 
widowliood  marries ;  in  these  and  similar  cases  the  tenants  having  thus 
delcrjnined  tlie  estates  by  their  own  acts,  shall  not  be  entitled  to  take 
the  eniblemciils  (A*). 

The  under-lenants  or  lessees  of  tenants  for  life,  have  the  same,  nay 
greater,  indulgencies,  than  their  lessors,  the  original  tenants  for  life. 
Ihe  same;  for  the  law  of  estovers  and  emblements,  with  regard  to 

(")  2  HI.  Corn.  122.  (t)  Cro-EKiz.  [4G4  j  (.O  Iliid.  (d)  Il.id.  [l6S.] 

(<)  Ibid.  121.  (/)  ll'irt.  te)  Shop.  Touch.  211.  (A)  Ibid, 

f «■;  6hej).  Touch.  471.  (i)  a  Bi.  Cora.  123. 


Sett,  lll.j  Of  Kmhh.ncnti.  2:59 

the  tenant  for  lilV,  is  also  law  w  ith  lT^;^rcl  to  hi?;  uiiiUr  ttiiaut,  who  rr- 
Prescntb  him  and  stands  in  his  place  :  (Ircater  ;  for  in  those  cases  wlierc 
tenant  for  life  sliail  not  have  tlic  enil)lenien(s  heeansr  the  estate  deter- 
mines l)y  his  OH II  aet,  the  c.\rr|t1ioM  shall  not  rr.uli  his  les?ee  \^ho  is  a 
third  person  (</)  :  thus,  in  the  ruse  of  a  woman  who  holds  durante  vi- 
duitatc  ;  her  taking  hnsband  is  her  own  act,  and  then  fon-  d(  ,»ii\»";  hov 
of  the  enibknicnts,  which,  if  she  be  a  feme  copyholder,  the  lord  shall 
have  ;  hut  if  she  leases  her  estate  to  an  under-tenant  who  fows  the 
hirul,and  she  then  marries,  this  her  act  shall  not  deprive  the  tenant  of 
his  eniMements,  who  is  a  stranger  an»l  could  not  prevent  her  {!>). 

AVith  regard  to  emhlements  or  the  prolits  of  lands  sowctl  by  tenant 
for  years,  there  is  this  dilfercnce  between  him  ai:d  tdiaul  lor  life  :  that 
where  the  term  of  tenant  for  years  depends  upon  a  certainty,  (as  if  he 
holds  from  Midsuutim  r  for  ten  years,)  and  in  the  last  year  he  sows  a 
crop  of  corn,  and  it  is  not  ripe,  and  cut  before  Midsummer^  the  end  of 
tiie  term,  his  landlord  shall  have  it  (r)  ;  for  the  tenant  knew  the  expi- 
ration of  his  term,  and  tiicrefore  it  was  his  own  folly  to  sow  that  of 
uhich  he  never  could  reap  the  profits.  In  such  case  the  landlord,  it  is 
said,  must  enter  on  the  lands  to  take  the  emblements  (rQ. 

But  where  the  lease  for  years  depends  n])on  an  uncertainty  ;  as  upon 
the  death  of  the  lessor,  bein;^  himself  only  tenant  for  lift',  or  being  a 
husband  seised  in  right  of  his  wife ;  or  if  the  term  of  years  be  deter- 
minable upon  a  life  or  lives  ;  in  all  ca^Lh  of  this  kind,  the  estate  for 
years  not  l)eing  certainly  to  expire  at  a  time  foreknown,  but  merely  by 
the  act  of  God,  the  tenant,  or  his  executors,  shall  have  the  emble- 
ments in  the  same  manner  that  a  tenant  for  life  would  be  entitled 
tJiereto  (r). 

Not  so,  however,  if  it  determine  by  the  act  of  the  parly  liimself :  as 
if  tenant  for  years  surrenders  before  severance,  or  does  any  thing  that 
amounts  to  a  forfeiture  ;  in  w  hich  case  the  emblements  shall  go  to  the 
lessor,  and  not  to  l!i'-  lessee,  who  hath  flcicrniiiK  il  his  estate  by  his  own 
default  (/). 

Jf,  however,  lessor  covenants  that  lessee  for  years  shuH  have  the  em- 
blements  which  are  growing  at  the  end  of  the  term,  there  the  property 
of  the  corn  is  well  transfcrrecl  to  the  ke.r.c,  though  it  be  not  severed 
during  the  term  [^). 

If  tenant  at  will  sows  his  laud,  and  the  landlord  before  the  corn  is 
ripe,  or  before  if  is  reaped,  put  him  out,  yet  the  teuiiiit  shall  have  the 
emblements,  aiitl  free  ingress,  egress,  and  regress,  to  cut  and  carry 
away  the  profile :  and  this  for  the  same  reason  upon  which  all  the  coses 
of  emidcmcnls  turn,  namely,  the  point  of  uncertainty  :  since  the  tc- 

a)  2  Bl   Com.   II  '  (b)  fro.  IMr..  sM.  'c)  2  I  1    eoni.  Hi. 

vV'.  '  '<»•   Ahr  s;  2  Dl   <  ,jm.  J 15.  (f)i  >Md.  (t)  Co.  Li'..  Ji-  t   c 


240  Of  Emhkmenls,  [Chap.  IX. 

nant  could  r\o\  possibly  know  \s hen  his  landlord  Mould  determine  his 
Mill,  and  therefore  could  make  no  provision  against  it ;  and  having 
so^vn  the  land,  which  is  for  the  good  of  the  public,  upon  a  reasonable 
presumption,  the  law  will  not  suffer  him  to  be  a  loser  by  it  {a). 

So,  if  the  estate  of  a  tenant  at  will  be  determined  either  by  his  deatk 
or  by  the  act  of  the  landlord,  he  or  his  executors  may  reap  the  cora 
sown  by  him. — Wherefore  the  corn  sown  by  a  tenant  at  will  (who  dies 
before  harvest)  and  purchased  by  another  person,  cannot  be  distrained 
by  the  landlord  for  rent  due  to  him  from  a  subsequent  tenant  (b). 

But  it  is  otherwise,  and  u})on  reason  equally  ijood,  where  the  tenant 
himself  determines  his  will  ;  for  in  this  case  the  landlord  shall  have  the 
profits  of  the  land  (<:). 

So  in  the  case  of  entry  of  the  lessor  before  sowing-,  the  lessee  at  will 
shall  not  have  the  costs  of  ploughing  and  manuring  {d). 

A.  lets  lands  to  7i.  for  ninety-nine  years  determinable  on  his  life,  witk 
a  proviso  of  re-entry  if  let  to  tillage  without  licence  ;  C.  under-tenant 
ploughs  and  sows  in  the  life-lime  of  /i.  who  dies,  no  re-entry  l)eing 
made  ;  the  proviso  was  gone,  for  it  could  only  operate  during  the  con- 
tinuance of  the  lease  ;  and  A.  having  never  been  in  possession  by  right 
of  re-entry  for  the  condition  broken,  can  have  no  advantage  thereof; 
and  he  who  ploughed  and  sowed  the  land,  has,  in  law  and  justice,  a 
right  to  reap  and  take  the  emblements  {e). 

If  a  husband  holds  lands  for  life,  in  right  of  his  wife,  and  sows  tlie 
land,  and  afterwards  she  dies  before  severance,  he  shall  have  the  emble- 
ments (/). 

So  M  here  the  wife  has  an  estate  for  years,  life,  or  in  fee,  and  the  hus- 
band sows  the  land  and  dies,  his  executors  shall  have  the  corn  [g). 

But  if  the  husband  and  wife  are  joint-tenants,  though  the  husband 
sow  the  land  with  corn  and  die  before  it  be  ripe,  the  uife,  and  not  his 
executors,  shall  have  the  corn,  she  l)eing  the  surviving  j«jiiit-tenant  (A). 

If  a  widow  is  endowed  with  lands  sown,  she  shall  have  the  emble- 
ments, and  nut  the  heir:  and  a  tenant  in  dower  may  dispose  of  corji 
sown  on  the  ground  ;  or  it  may  go  to  lier  executors,  if  she  die  before 
severance  (/).  Indeed  it  is  provided  by  the  stat.  of  Mcrtoii,  2  II.  3.  r. 
2.  that  a  dowercss  may  dispose  by  will  of  the  growing  corn,  otherwise 
it  goes  to  her  executor  (k). 

But  where  lands  are  limited  to  a  woman  during  life  for  her  joint- 
ure, she  has  the  same  rights  with  respect  to  estovers  and  emblements, 
and  is  under  the  same  restrictions  resj)ecting  waste,  (unless  there  is  a 
deficiency  in  her  jointure,)  as  other  tenants  for  life.  A  jointress  is 
not,  however,  entitled  to  the  crop  sown  at  the  time  of  her  liusband'e 

(al  Co.  Lit.  f>5.  a.  2.B1.  Com.  14G.  (b)  Willes,  13S.  (c)  Ibid. 

fd)  Co.  Lit.  55.  a^n  4.  (e)  3  Wih.  UO.  r/J  I  Nels.  Ahr.  701.  (?)  Uiid.  702. 

'■h)  Co.  Li».  M.  brC;-o.  Eliz.  fil.  (i)  2  Inst  80,81.  (k-)  I  Inst.  65.  b.  ii.  X 


Sect,  in.]  Of  Emhhmcnts.  211 

dcatli  ;  because  a  jointure  is  not  ;i  continnanrc  of  tlie  estate  of  tlic  lm<;. 
hand,  like  dower  :  on  the  death  of  a  jointress,  therefore,  her  k  juimu- 
tutivfs  arc  nt»t  intitlcd  to  t inMrni'.nts  {a). 

If  tenant  l»y  statute  nu  reliant  FDUsthc  land,  ajid  before  Fcverancr  a 
sudden  and  causal  profit  happens,  t)y  whieh  he  is  satisfied,  yet  he  shall 
liave  theeinltlcmcnts  (6). 

Where  lands  sown  are  delivered  in  execution  upon  an  extent,  the 
person  to  whom  they  are  so  delivered  shall  have  the  corn  on  the 
ground  (r.) 

So,  where  jiidi^'inent  wasciven  au;ainst  a  person,  and  then  he  sowed 
the  land,  and  hiont^lit  a  writ  of  error  to  reverse  the  JiidK«"<'it> '^"^ 
it  was  alhrnied  ;  it  was  ad  judged  that  the  recoveror  should  have  the 
corn  ((/). 

If  a  nun  enter  by  title  pirainount,  he  shill  have  the  emblements; 
as  if  a  disseisor  sow  and  the  disseisee  enter  before  severance  (< ). 

The  advanta-^es  also  of  emblements  are  particularly  extentird  to  the 
parocliial  clergy  by  the  stat.  28  //.  8.  r.  11.,  which  considers  all  per- 
sons who  are  presented  to  any  ecclesiastical  benefice,  or  to  any  civil 
oiHce,  as  tenants  for  their  own  iivrs,  unless  the  contrary  be  expressed  in 
the  form  of  the  donation.  I5y  this  statute,  if  a  jjarson  sows  his  i^lebc 
and  dies,  his  executors  shall  have  the  corn  ;  and  such  parson  may  by 
will  dispose  thereof.  5.  0.  ( / ). 

J.  grants  to  B.  that  he  may  sow  A.'s  land,  which  is  i-one  ac- 
cord in.;Iy ;  yet  y7.  shall  have  Ih.c  embiemetits,  because  W.  hath  not  an 
interest  (/;'). 

If  the  lessee  for  a  tenant  for  life  be  disseised,  and  the  lessee  of  the 
disseisor  sow  tlie  land,  and  then  tlie  IcnMit  for  life  dies,  and  he  in 
romainiler  enters,  yet  he  shall  n)t  have  the  cjnliiements,  but  the  lessee 
of  the  tenant  for  life;  for  rjuin/uid  planfdtur  solo,  nolo  credit  (/')• 

Where  there  is  a  right  to  emblements,  ingress,  egress,  an<l  repress 
are  allowed  by  law,  in  order  to  enter,  cut,  and  carry  them  a\\ay  when 
the  estate  is  determined  (/). 

Enjblements  are  distinct  from  (he  real  estate  in  the  land,  and  sub- 
ject to  many,  though  not  all, the  incidents  atlendiii:;  personal  chattels: 
they  are  devisable,  and  at  the  death  of  t  lie.  ouner,  shall  vest  in  his 
executor,  and  not  his  heir;  they  arc  forf«'itaI)le  by  outlawry  in  a  |>er- 
sonal  action  ;  and  by  tlie  stat.  1 1  fi.  2.  r.  I'J.  (though  not  by  the  com- 
mon law)  they  may  be  distrained  for  rent  arrear  (/i). 

But  though  emhlemenls  are  assets  in  the  hands  of  the  executor,  arc 
forfeitable  upon  outlawry,  and  distrainable  for  rent,   they  are  not  in 

(a)  9  Vin.  Abr.  371.  1  E-i  Cm.  Al.r  231.  Cruise's  Dij  VII   r.   I.  «  3i,  35.  36. 

(6)  Co  Lit.  Si.  b.  (ej  2  Leon  5«.  (d)  3  DuU!   213.  (e)  Co.  1  il.  JJ   b. 

W)  2  Bl.Com.  123.  (g)  Co  Lit   55.  n  n.  I.  (A;  Cro.  Eltz.  HiX] 

0)  )  lost.  56  (t)  2  Dl.  Com.  401. 


2i2  Of  Emblements.  [Ciiap.  IX. 

other  respects  considered  as  personal  chattels,  and  particularly  they 
axe  not  the  object  of  larceny  before  they  are  severed  from  the  ground  (a). 

Of  Gleaning. — It  may  perhaps  be  as  well  to  introduce  here  a  word 
respecting  gleaning  or  lesing.  An  idea  very  universally  prevails  among 
the  lower  classes  of  the  community  that  they  have  a  right  to  glean, 
that  is,  to  take  from  off  the  land  the  corn  that  remains  thereon  after 
the  harvest  has  been  gotten  in ;  than  which  notion  nothing  can  be 
more  erroneous.  By  custom,  indeed,  such  a  right  may  possibly  in 
some  particular  places  exist;  and  the  laudable  kindness  of  tenants 
generally  induces  them  to  permit  the  poor  to  collect  the  com  they 
have  left  upon  the  land,  and  to  appropriate  it  to  their  own  use.  As  a 
right,  however,  it  has  no  more  existence  than  a  right  to  take  the  tenant's 
furniture  from  out  of  his  messuage,  and  the  pillage  in  the  one  case  is 
as  much  felony  as  the  plunder  would  be  in  the  other :  for  the  act  is  not 
simply  a  trespass,  but  a  felony  ;  and  the  compiler  well  remembers  a 
conviction  at  the  Old  Bailey  on  an  indictment  found  for  the  exercise  of 
this  supposed  right.  The  parties  were  tried  before  Mr.  Justice  liooke, 
(if  he  mistake  not)  about  six  years  ago.  Indeed,  it  has  been  deter- 
mined, after  two  solemn  arguments,  that  no  such  right  exists  at  com- 
mon law ;  whatever  may  possibly  be  the  case  on  the  ground  of  cus- 
tom in  particular  places  (b). 

For  though  it  is  no  larceny,  but  a  bare  trespass,  to  steal  corn  or 
grass  growing,  it  is  larceny  to  take  them  being  severed  from  the  free- 
hold, whether  by  the  owner  or  by  the  thief  himself,  ii  he  steals  thtm 
at  one  time  and  then  come  again  at  another  time  and  take  them  (c). 

^t'-  2  Bl.  Com.  404.  (6)  1  H.  Bl.  R.  53.   1  Bur.  19i26.  (c;  \  Kaw.  P.  C.  (J,  63.  s.  2V. 


[     213     ] 


CllAPTKU  X. 


Of  the  general  Incidents  to  fjcascs  (continued). 

Section  I.     Of  implied  Covtnants  and  Ai^rcements. 
SF.cTIo^  II.     Of  express  Covenants  and  Au^nements. 

Section  I.     Of  implied  Covenants  and  Agreements. 

COVENANT,  contract,  and  agreement,  arc  often  used  as  synony- 
mous words,  siq;nifying  an  engagement  entered  into,  by  wiiicli  one 
person  lays  himself  under  an  obligation  to  do  something  l>eneficiul  to, 
or  to  a))£tain  from  an  act  which,  if  done,  would  be  prejudicial  to  au- 
other  (rt). 

A  covenant  is  either  implied  or  expressed,  it  subsists  either  in  law  or 
in  fact. 

An  implied  covenant,  or  covenant  in  law,  is  that  which  the  law 
intends  and  implies,  though  it  be  not  expressed  by  wortis  in  the  deed. 

For  quit't  enjoyment. — TJuis,  when  one  makes  a  lease  for  years  by  th« 
words  "  demise  and  grant,"  without  any  express  covenant  for  quirt  en- 
joyment ;  in  this  case,  the  law  intends  and  makes  such  a  covenant  on 
the  part  of  the  lessor,  which  is,  that  the  lessee  shaii  quietly  hold  and 
enjoy  the  thing  demised  against  all  persons,  at  least,  having  title  under 
the  lessor,  and  at  least  during  the  lessor's  life,  and  (as  some  think, 
1  Inst.  381.)  during  the  whole  term  (A)  :  and  hereu[)ot)  an  action  of  co- 
venant may  be  brought  against  him  in  the  reversion  ;  so  tiiat  if  the  heir 
that  is  in  by  descent  put  out  the  termor  of  his  father,  the  termor  may 
have  this  action  against  him. —  If  the  party  ousting  the  covenantee  has 
no  title,  the  covenantee  it  is  said  cannot,  where  the  covenant  Ls  cre- 
ated by  law,  bring  an  action  of  covenant  against  the  lessor  (r) 

But  though  such  covenant  in  law  is  general  against  all  persons  that 
have  title  during  the  term,  and  extends  to  the  heir  after  the  deatli  of 
the  lessor,  as  against  himself  only,  and  sliall  charge  the  executors  or 
administrators  for  any  disturbance  in  thr  lUV  of  the  covenantor,  vol 

(<i>B»'>    Abr  rSX.  "  CovPMirt"  (i)  fh^f.  TonrS.  I«0 


244  Of  i7)q}Ucd  Covenants.  [Chap.  X. 

(it  U  said)  it  shall  not  charge  them  for  any  disturbance  afterwards. 
[But  seel  Inst.  3Sk]  lie  that  sues,  therefore,  upon  this  covenant 
iiUTst  shew  that  he  w  as  molested  or  evicted  by  one  that  had  an  elder 
title  (n). 

An  implied  covenant  for  quiet  enjoyment,  comprehends  a  covenant 
by  implication  that  the  lease  shall  be  valid  and  not  void  or  voidable  ; 
for  of  such  there  cotild  of  course  be  no  enjoyment  at  all  :  and  this 
principle  is  the  same  as  that  which  respects  any  conveyance  ;  for  where 
a  man  undertakes  to   convey,   he  unuertakes  to  convey  by  a  good 

title  (/>)• 

Jo  cultivate  the  Land. — A  covenant  is  implied  also,  on  \ht  part  of  the 
lessee  that  he  will  use  the  land  demised  to  him  in  a  husbandman-like 
manner  and  not  unnecessarily  exhaust  the  soil  by  neglectful  or  improper 
tillage  :  for  the  bare  relation  of  landlord  and  tenant  is  a  sufficient  con- 
sideration for  the  tenant's  promise  to  manage  a  farm  in  husl)and-like 
manner  {().  ^ 

It  is  likewise  so  notoriously  the  duty  of  the  actual  occupier  to  repair 
the  fences,  and  so  little  the  duty  of  the  landlord,  that  without-an 
agreement  to  that  effect,  the  landlord  may  maintain  an  action  against 
his  tenant  for  not  so  doing,  upon  the  ground  of  the  injury  done  to  his 
inheritance  (d). 

To  keep  Messuage,  ^-c.  in  Repair — So,  in  case  of  a  house  or  otlier 
tenement,  a  covenant  is  implied  that  the  tenant  w  ill  keep  it  in  repair  : 
a  tenant  for  life  therefore  shall  be  obliged  to  keep  the  tenant's  houses 
on  tlic  estate  in  repair,  even  though  he  be  such  w  ithout  impeachment 
of  w aste  :  and  such  is  the  case  even  w ith  respect  to  a  tenant  at  will ; 
for  the  tenant  ought  in  justice  to  restore  the  preuuses  in  as  good  a 
plight  as  they  can  be,  consistent  with  such  deterioration  as  is  unavoid- 
able (.'). 

A  mortgagee  in  possession  need  only  keep  the  estate  in  necessary  re- 
pair (/). 

A  yearly  tenant  however  is  bound  only  to  tenantable,  and  not  to  last- 
ing repairs. 

Thus  where  an  action  was  brought  to  recover  damages  for  sulTering 
the  plaintilf's  house  to  be  out  of  repair.  The  case  was  that  the  de- 
fendant had  rented  a  house  of  the  plaintiff  as  tenant  at  will  at  Sll.per, 
ann.  w  hich  he  had  quitted  :  after  the  defendant  had  given  up  possession, 
thehousebeingfoundtobemuchout  of  repair,  the  plaintili"  had  an  esti- 
mate made  of  the  sum  necessary  to  put  it  into  complete  and  tenantable 
repair,  for  which  sum  this  action  was  brought.  But  Lord  Kcnyon  said, 
it  was  not  to  be  permitted  to  the  plaintiil'  to  go  for  the  damages  so 
claimed.     A  tenant  from  year  to  year  was  bound  to  commit  no  waste, 

(«;  Phcp.  Touch.  107.  (6)  1  H.  Bl.  280.  2  Ibid.  12X  {n)  6  T.  R.  373. 

;^/.  \  T.  U.  a!?.  k')  2  Atk.  323.  if)  3  Atk.  010. 


.Sect.  I.]  Of  implied  Covcnanls.  21a 

aiul  (o  in:ikc  f.iir  and  ten  nitahlc  repair?,  such  as  putlinu:  in  '.viiulows  or 
doors  f  h;it  have  hcen  hrokcii  by  Iiiin,  so  as  to  j;rcvcnt  waste  and  <iccay 
of  the  promises  ;  Ijiit  that  in  the  present  case  t!ic  plain!  ifi'  hail  cLiimed 
a  Finn  lor  pntlini;  on  a  new  roof  on  an  old  worn  out  house;  tliishis 
Lordship  thon;;ht  the  tenant  not  to  1)0  bound  to  do,  and  that  the  plain- 
tifl*  liad  no  ri  Jjt  to  recover  it  (rf). 

Hut  (i-txict)  tenant  at  will,  it  is  said,  is  not  bound  to  rcjKiTror  mi  '.liu 
houses,  like  tenant  for  years  (A). 

It  lias  been  held  that  if  a  man  lia«:  an  upper  room  in  a  house,  an  ac- 
tion wouM  licagainrl  him  to  compel  liim  to  repair  Iiis  roof(r)  ;  and  so 
vhcre  a  man  has  a  j^rouml-room,  tliat  tliey  over  him  mii;ht  Ijave  an  aR» 
tion  to  compel  him  to  keep  up  and  maintain  his  foundation  :  !)ut  this 
seems  to  be  erroneous  ;  there  is,  indeed,  a  writ  in  Nat,  IWcv.  VIT.  to  a 
mayor,  to  command  liim  that  has  the  lower  rooms  to  repair  the  foun- 
dation, and  liim  that  lias  a  garret  to  repair  the  rool";  but  that  was 
grounded  on  a  custom  {d). 

Paiimnit  of  Unit. — As  in  every  contract,  there  must  be  a  Iep;al  con- 
sitlcration  to  make  if  valid,  so  where  the  relation  of  landlord  and  ten- 
ant subsii:ts,  some  (jvid  pro  f/i/o  must  subsist  also.  Tiiereforc,  unless  the 
lease  be  granted  in  consideration  of  a  line  or  a  sum  in  gross,  an  implied 
contract  is  raised  on  the  pan  of  the  tenant  that  lie  shall  pay  an  annual 
rent. 

These  implied  covrnanls  arc  said  to  be  inherent,  that  i>,  such  asap- 
purtain  especially  to  the  land  ;  as  that  the  thini;-  itself  sliall  be  quietly 
enjoyed,  shall  be  kept  in  reparation,  and  shall  not  be  aliened  ;  or  to  pay 
rent,  not  to  cut  down  timber  trees,  or  to  do  waste;  to  fence  the  coj)- 
pices,  when  they  be  new  cut  and  the  like  (c). 

An  implied  covenant  is  in  all  cases  controlcd  witliin  the  limits  of  an 
express  covenant ;  for  exprcssum/acit  cessarc  taciturn  (f). 

Thus  for  example,  with  respect  tn  the  covenant  for  (juiet  enjoyment  ; 
if  a  man  leases  for  years  by  the  words  "  I  have  demised,  tS;c."  and  the 
lessor  covenants  that  the  lessee  shall  enjoy  during  the  term  without 
cviciion  by  the  lessor,  or  any  claiming  under  him  (."■),  this  express  cove- 
nant (lualilics  the  generality  of  the  covenant  in  law  and  restrains  it  by 
tiie  mutual  consent  of  both  parties,  that  it  shall  not  extend  farther 
than  the  express  covenant  :  and  this  is  consonant  to  the  principle, 
that  where  there  is  an  express  promise,  another  promise  caimol  be  im- 
plied {h). 

Caution,  therefore,  is  to  be  used  in  introducing  into  a  lease  express 
covenants  in  certain  cases  ;  as  the  evil  intended  to  l)c  guarded  against, 

(rt)  2  Esp.  R   ion.  Ct)   I  Crub««  Dig.  lit    I\   s.  U.  Ij.  •  M.h!    h 

{d)  6  Mod  3M.  •      .    (t)  Shep.  Toucfi.  l«il. 

(/)iCo.  BD     iSauml.C*.   Cro.  riiz,  67i.     I  .Alod.  M3.    :  1   '  !  .  ^    : .    ... 

ff)  Bac.  AlT   tit.  ••«.OTeotnt''rD.)  Cro.  Eli;:.  674.  .    7  T.  RiiOt. 


246  Of  txpress  Covenants,  [Clinp.  X. 

may  frequcnlly  be  pvevciitcd  or  rccompctissd  in  a  more  limltec'.  degree 
by  an  cx\ue?s,tlian  an  implied  covenant. 

The  djtinclicn  between  intplied  covenant?  by  operation  of  law,  and 
cxpri  ;s  covenan(.s  is  that  exi)ress  covenants,  arc  to  be  taken  more  strict- 

If  a  bond  is  for  performance  of  covenants,  it  is  forfeited  ]>y  a  breach 
of  a  covenant  in  law  ;  as  if  the  lessee  be  evicted  out  of  the  premises 
(Ic'nised  {'>). 

AV'/iere  the  plaint  ill  paid  money  to  the  defendant,  on  the  defendant's 
promise  to  make  him  a  lease  of  land,  and  before  the  lease  made  the 
defendant  was  evicted,  the  plaintiff  recovered  the  money  in  this  action, 
the  consideration  not  having  been  perfcrujed  (r). 


Section  II.     Of  express  Covenants. 

Coi-rnants. — .Vn  express  covenant  i?  the  agreement  or  consent  of  tu<5 
or  more  !)y  deed  in  writing,  sealed  and  delivered,  whereby  either  of  the 
parties  promises  tlie  other  that  something  is  done  already,  or  shall  be 
done  afterwards.  He  that  makes  the  covenant  is  called  the  covenantor, 
and  he  to  whom  it  is  made  the  covenantee  (d). 

The  general  principle  is  clear,  that  the  landlord  having  \he jus  (h'spo- 
jiend'i,  may  annex  whatever  conditions  he  pleases  to  his  grant,  provided 
they  be  not  illegal  or  unreasonable  {e). 

No  particnlar  technical  words  are  requisite  towards  making  a  cove- 
nant ;  for  any  words,  it  seems,  which  shew  the  parties'  concurrence  to 
the  performance  of  a  future  act  ^viil  suffice  for  that  purpose ;  as  "  yield- 
ing and  paying,  c'fr."  (/). 

T.hns  if  lessee  covenants  to  repair, "  provided  alv.  ays  and  it  is  agreed, 
that  the  lessor  shall  find  great  limber,  <?-r."  this  makes  a  covenant  on 
the  part  of  the  lessor  to  find  great  timber  by  the  word  "  agreed,"  and 
it  shall  not  be  a  qualification  of  the  covenant  of  the  lessee ;  but  without 
this  word,  it  wo\ild  have  been  only  a  qualification  of  the  covenant  of 
the  lessee  (0-). 

Covenants  are  cither  real  or  personal  (//). — Covenants  real,  or  such 
as  are  annexed  to  estates,  shall  descend  to  the  heirs  of  the  covenuntee, 
and  he  alone  shall  take  advantage  of  them  ;  and  such  co\'enants  are  said 
to  run  with  the  land,  so  that  he  that  hath  the  one,  is  snltjeet  to  the 
other;  for  which  reason  warranties  were  called  real  covenants, — Cove- 

(a)  .!  Bur.  1G30.  (6;  I  Ksp.  N    P  ?  '    ■■■  '  o   r,0. 

(c;  Palni.  304.     I  Erp.  Jf.  P.  3    Vi-U  ante.  C  II.  S   :  (d)  Slicp.  Tciich.  Ifia 

I'c)  2  T.  r<.  i;!7.  '  ;  1  Bur.  2U0.  2  Aloi!.  02. 

:'  Uac.  Abr.  lit  "  Covenajit.**  (A.)  d  b  c.  A)  n>id.  (K.  2.; 


Sect.  11.]  Of  txprcss  Coicnants.  217 

nnnts  persona',  arc '^uch  w  cr»o' s<iiuc  person  in  puilicu'ar  sliall  have 
the  liencfit,  or  \vliertl)y  he  sWall  !»*•  cliarmd  ;  a.swlicn  a  man  cove- 
nants to  do  atiy  persona!  thini;,  ai>  to  bnikl,  or  repair  a  l)*^»>'.>c,  ^c.  or 
the  like  [((  . 

In  a  Ic  i^c  of  <:ro:in(l  with  liljcrty  (o  ni.il;c  a  watrrcoiirFc,  and  erect 
a  Miill,  t  ic  lessee  covenanted  for  himself,  his  e.vecutors,  mid  assiims, 
not  to  hire  pi^rsons  to  \vo  k  in  tlic  mill,  u  ho  were  bcllled  in  otiier  pa- 
rishes without  a  parish  certificate  ;  held  that  this  covenant  did  not  nin 
with  the  land,  or  biml  the  assignee  of  the  lessee  (.(;)• 

As  l)  tlie  construction  of  coven.ints,  uli  contracts  are  to  he  taken  ac- 
cirdin<  to  the  intent  of  the  parties  expressed  by  their  own  words,  and 
if  there  be  any  duubt  in  the  sense  of  the  words,  such  constructiuii 
shall  be  made  as  is  most  strong  against  the  covenantor;  lest  by  the 
obscure  u»)rdiJig  of  his  contract,  he  should  /ind  uuans  to  evade  and 
elude  it   (   ). 

Under  a  lease  f.)r  fo-.irteen  or  seven  years,  the  lessee  only  lias  the  op- 
tion of  determhiing  it  at  the  ejid  of  the  first  seven  years  ;  every  doubt- 
ful grant  bei'ig  c■)n^■(ru■•d  in  favour  of  the  grantee  (f/). 

So  tenant  by  t-ie  Cdrtesy,  in  tail  after  possibility  of  issue  extinct, 
in  ddwcr,  for  life,  years,  by  st.itutc  or  rici^it,  guardian,  A'v.  hold 
tiieir  estates  sul>iect  to  a  condition  in  law;  so  that  if  either  of  them  , 
alien  his  Iml  in  fee,  or  claim  a  greater  estate  in  a  court  of  record  than 
his  own,  lie  r)rfeils  his  estate,  and  he  in  remainder  or  reversion  may 
en'.  ;r;  and  if  such  tenant  do  waste,  he  in  reversion  sliall  recover  tiie 
jplace  wasted  (r). 

0/  CmdUion'i. —  V  con<lition  signifies  some  quality  annexed  to  a  real 
estate  by  virtue  of  wiiich  it  may  be  defe.ilcd,  enlarged,  or  creatcil  up- 
on an  uncertain  event.  Also  qualities  annexed  to  personal  contracts 
and  agreements  arc  frequently  called  conditions  ;  and  tluFC,  as  well  as 
coven.ints,  must  likewise  be  interpreted  according  to  the  real  intention 
of  t!ie  j)irties  f\-c.  (/). 

Conditions  ;irc  either  precedent  or  subsequent.  Where  a  condition 
mi!st  l)c  performed  bei'ore  the  estate  cm  euuunence,  it  is  called  "  a  con- 
dilion  prercdr'nt  ;"  but  where  thceiiert  of  liie  condition  is  either  to  en- 
large or  defeat  an  estate  already  created,  it  is  then  called  "  acoinlilion 
subsequent"  (r?-). 

Conditions  are  most  projicrly  created  by  inserting  th.c  very  word 
**  condition"  or  the  word<5  "  on  condition  ;"  but  the  word  commonly 
and  as  eifectually  made  use  of  is  that  of  '♦  provided  ;"  uiitrefoie  a 
condition,  and  a  proviso,  are  synonymous  terms  (//). 

But  if  a  proviso,  or  condition  have  ilep^ndancc  upon  another  clause 

(a)  Shop.  Touch.  161.  (6     10  fiuf.  I.m  fr    Par   Abr.  ti»    "Coventli!  "  (f" 

(rf)  0  Vz.-.  15.  (c)  Shep  Touch   \2.-,  (/)  IMd  tit.  "  CrMliUoni." 

(V)  CruijC'j  ;Jig   Ml.  lit.  I.  J.  6.  1  lost.S!-].  a.  ::37.«.o.  1  (A;  <bv\>.  ivch   IC  < 


248  Of  express  Covenants.  [Cliap.  X. 

of  the  deed,  or  be  the  words  of  the  lessee,  to  compel  the  lessor  to  do 
somcthhig,  then  it  is  not  a  condition,  but  a  covenant  only  ;  as  if  (here 
be  in  the  deed  a  covenant  that  the  lessee  shall  scour  the  ditches,  and 
then  these  words  follow,  "  provided  that  the  lessor  shall  carry  away 
the  earth"  (a). 

If  the  words  run  thus:  *'  provided  always,  and  tlie  lessee,  <Ur.  dotli 
covenant  <SV'.  that  neitlier  lie  nor  his  heirs  shall  do  such  an  act ;"  this 
is  both  a  condition  and  a  covenant  {b). 

If  a  man  make  a  lease  for  years  by  indenture  "  provided  always  and 
it  is  covenanted  and  agreed  between  the  parlies,  that  the  lessee  shall 
not  alien  ;"  this  is  both  a  condition  and  a  covenant ;  for  it  was  adjudg- 
ed that  this  was  a  condition  by  force  of  the  proviso,  and  a  covenant  by 
force  ot  the  other  words  (r). 

If  a  man  leases  for  years,  rendering  rent,  and  the  lessee  covenants 
to  repair,  i^^c.  and  afterwards  the  lessor  devises  to  the  lessee  for  more 
years,  yielding  the  like  rent,  and  under  such  covenants  as  were  in  the 
first  lease,  yet  this  makes  no  condition  ;  for  though  after  tlie  first  lease 
is  ended,  the  lessee  shall  not  be  bound  by  the  covenants,  yet  the  will 
expressing  that  the  lessee  should  have  the  lands,  observing  the  first 
covenants,  it  shall  not  betaken  to  be  a  condition  by  any  intent  lO  be 
collected  out  of  the  will  ;  for  covenants  and  conditions  di/I'er  much  (rf). 

With  respect  to  what  shall  be  deemed  a  condition,  it  is  a  rule  in 
provis-  es,  that  where  a  proviso  is  that  the  lessee  shall  perform  or  not 
perform  a  thing,  and  no  penalty  is  annexed  to  it,  that  is  a  condition, 
otherwise  it  would  be  void  ;  but  if  a  penalty  is  annexed,  it  is  a  cove- 
nant [('). 

A  condition  may  be  annexed  to  an  estate  of  inheritance,  freehold,  or 
for  years ;  or  to  a  grant  of  tithes  by  the  clergy  ( f  J. 

So,  estrtes,  made  by  deed  to  infants,  and  fcnie  coverts,  upon  condi- 
tion, shall  })ind  them,  because  the  charge  is  on  the  land  (5 ). 

The  heir,  though  not  named,  may  take  advantage  of  a  condition  an- 
nexed to  a  real  estate  (/*)  :  and  where  the  condition  of  an  obligation 
was  to  make  a  lease,  or  pay  100/.  the  obligee  dying,  though  the  elec- 
tion was  taken  aw  ay,  it  was  held  that  the  executor  should  have  the 
100/.  ageeably  to  the  rule  incases  of  heirs  (/). 

But  a  condition  shall  not  be  construed  to  extend  to  things  of  com- 
mon right,  as  if  the  condition  be  that  one  shall  enjoy  such  land  im- 
mediately upon  the  grantor's  death ;  though  the  executor  take  the 
emblements,  the  condition  docs  not  extend  to  it  (k). 

A  lease  for  life  on  condition,  being  a  freehold,  cannot  cease  without 

(n)  Shep.  Touch.  122.  (i)  Ibid.  (c)  Co.  Lit.  203.  b. 

(d)  Hac.  Abr.  tit.  "  Conditions."  fO.]  (c)  Cro.  EJiz.  2l2. 

(/)  Com.  Dig.  tit.  "  Conditions."  [A.  7.]  (g-)  2  Danv.  30.  (A).lVee.  47. 

CO  1  Salt.  172.  (t)  Cora,  UJ^.  tit.  "  Condilious."  [E.j 


y'cct.  IF. I  ()j  ixprcss  Curcnants.  Jll* 

entry  ;  hut  if  it  ))c  a  Icri'-e  for  years,  the  lease  is  void  ipso  facto  on  Incath 
of  the  condition,  uilliout  any  entry  (n). 

As  to  v.hat  shall  he  a  suspension  of  a  condition,  iflessee  for  years 
hath  execution  l)y  elegit  of  a  moiety  of  the  rent  and  reversion  against 
tiie  les.SDr,  whi  ic  the  lease  is  upon  condition,  this  is  a  siispen.-ion  of  all 
the  condition  diuin:,^  the  time  of  the  extent ;  and  thoui^h  l)ul  a  nioicty 
of  the  rent  is  extended,  yd  llie  entire  condition  is  susi)endcd.  So  it  is 
if  a  str.iimir  luith  execution  l>y  cla^it  [!>). 

A  couiiition  may  be  contained  in  llic  same  deed  ;  or  indorsed  upon 
the  deed  ;  or  nuy  he  contained  in  another  deed  executed  the  same  day. 
So  a  condition  to  defeat  a  deed  niay  be  anni.'xcd  to  the  reservation  of 
the  rent,  explainin^^  the  manner  of  payment  (r). 

A  i»roviso  ov  condition  diilers  also  from  a  covenant  in  thi.s  that  a 
proviso  is  in  the  words  of,  and  himlinsj^  upon  both  parlies,  whereas  a 
covenant  is  in  tlu;  words  of  tlic  covenantor  only. 

Liniier  a  power  to  tenant  for  life  to  lease  for  years,  reservinc;  the  usual 
covenants,  <^r.  a  lease  made  by  him,  containing  a  proviso,  that  in  case 
the  premises  were  blown  down,  or  burned,  the  lessor  'should  rebuild, 
otherwise  the  rcrit  should  cease,  is  void,  the  jury  finding  that  such  cove- 
nant is  unusual  (</). 

So,  under  a  })ower  to  a  tenant  in  possession  to  let  all  or  any  part  of 
the  premises,  so  as  t!ie  usual  rents  be  reserved,  a  lease  of  tithes,  which 
had  never  been  let  before,  was  h(;ld  void  (<■ ). 

So,  a  covenant  not  to  assign  witiiout  licence,  was  lield  by  'J'/ii/rhfVt 
L.  C.  J.  not  to  Come  williin  a  contract  to  grant  a  iea^e  witli  comn;on 
and  usual  covcnaiits.  "  Common  and  usual"  covenants,  his  Lordship 
observed,  must  mean  covenants  incidental  to  the  lease :  and  that  though 
the  covenant  not  to  assign  without  licence  might  be  a  very  useful  one 
where  a  brew  er  or  vintner  let  a  public  Jiouse  (as  was  the  case  here),  that 
uould  not  make  it  a  common  covenant  (/). 

Covenant  for  quiet  enjoi/incnt, — An  express  covenant,  usual  on  the  part 
of  the  lessor,  is  for  quiet  ci^joyment  of  the  premises  demised,  or  to  save 
harmless  the  lessee  from  all  persons  claiming  title. 

A  covenant  for  quiet  enjoyment  implies,  of  course,  that  the  lease 
shall  be  a  good  and  valid  demise,  as  a  bad  lease  would  be  a  l)reach  of 
such  covenant  for  t!ie  reasons  assigned  before.  This  being  the  case  t!ic 
old  covenant,  for  farther  assurance,  becomes  unnecessary,  and  has  there- 
fore fallen  into  disuse  (^;. 

Indeed,  according  to  the  ancient  mode  of  conveyance,  deed.-  wut; 
confined  to  a  very  narrow  compass.  The  words  "  grant  and  enfcoiT," 
amount  to  a  general  warranty  in  law,  and  have  the  same  force  aud  ciiect. 

(a)  1  Itut.  214.  <6)  llac.  Abr.  tit.  "  Cooditioiis. "  (O.  X) 

(c)  Com.  Dig.  ut  antt.  (\.  9.)  (d)  I   T    R.  705.  (t)  3  T.   R.  CG5. 

(/)  3  Br.  R.  03^.  (f)  Step.  Touch.  170. 


250  Of  express  Covenants.  [Ciiap.  X. 

The  covenants  therefore,  which  have  been  introduced  in  more  modern 
times,  if  they  have  any  use  besides  that  of  swallowing  a  quantity  of 
parchment,  are  intended  for  the  protection  of  the  party  conveying  ;  and 
are  introduced  for  the  purpose  of  gratify  ing  the  general  warranty,  w  hich 
the  old  common  Jaw  implied  [a). 

If  one  make  a  lease  of  land  to  another,  and  covenant  that  he  shall 
quietly  enjoy  it  witliout  the  let  or  molestation  of  any  person  whatsoever, 
or  w  ithout  the  let  of  any  person  whatsoever  claiming  by  or  under  the 
lessor ;  in  both  these  cases,  the  covenant,  it  is  said,  shall  be  taken  to 
extend  to  such  persons  as  have  title,  or  claim  some  estate  under  the 
lessor  ;  for  if,  in  the  first  case,  the  lessee  shall  be  disturl)ed  by  any 
claim,  entry,  or  otherwise  by  any  person  that  hath  no  title  ;  or  in  the 
second  case,  by  any  person  w  ho  shall  claim  under  another  and  hath 
title,  or  that  shall  claim  under  the  lessor,  this  is  lield  to  be  no  breach 
of  the  covenant.  Sed  rjuare  as  to  the  first  case  ;  for  herein  some  con- 
ceive a  ditference  between  a  covenant  in  deed,  and  a  covenant  in  law ; 
and  howsoever  the  latter  is  extended  only  to  evictions  by  title,  yet  that 
the  covenant  in  deed  shall  be  extended  further;  therefore  that  if  A. 
make  a  lease  to  B.  and  covenant  that  B.  shall  quietly  enjoy  it  during  the 
term  without  the  interruption  of  any  person  or  persons,  in  such  case, 
if  a  stranger,  having  no  right,  interrupt  B.  he  may  have  an  action  of 
covenant,  as,  when  such  a  promise  is  by  word,  an  action  on  the  case 
will  lie  upon  it  [b). 

A  covenant  for  quiet  enjoyment  does  not  extend  to  oblige  the  lessor 
to  rebyild  (r). 

A  covenant  that  the  lessee  shall  quietly  enjoy  against  all  claiming, 
or  pretending  to  claim,  a  right  in  the  premises,  was  held  to  extend  to  all 
interruptions,  be  the  claim  legal  or  not,  provided  it  appear  that  the  dis- 
turber do  not  claiju  under  the  lessee  himself  (<-/). 

It  seems  indeed  to  have  been  at  one  time  held,  that  if  the  lessor  un- 
dertook expressly  that  the  lessee  should  enjoy  during  the  term  "  quietly, 
peaceably,  and  without  interruption,"  it  would  extend  as  a  covenant 
against  all  tortious  ejectments  whatsoever ;  but  this  doctrine  is  now 
over  ruled  (c). 

For,  where  a  covenant  was  inserted  in  a  conveyance  of  land?  in  Jmc' 
rica,  during  the  American  war,  that  the  grantor  had  a  legal  title,  and 
that  the  grantee  might  peaceably  enjoy,  i^c.  w  ithout  let,  interruption, 
Src.  of  the  grantor  and  his  heirs,  "  and  of  and  from  all  and  every  other 
person  or  persons  whomsoever,"  it  was  held  not  to  be  broken  by  the 
States  of  America  seizing  the  lands  as  forfeited  for  an  act  done  previous 
to  the  conveyance,  notwithstanding  the  subsequent  acknowledgment  of 

(n)  2  Bos.  k  Pul.  28.  C6;  Shep.  Touch.  166.  Loffl's  R.  4C0.  (c)  Anibl.  C20. 

(<<)  10  Mod.  381.  I  Com.  B.  230.   \  T-   R.  67a.  fO  I  Esp.  A'.  P.  273.  Hoi>.  35.. 


Prct.  H.j  Of  express  Covruants.  2.'ii 

hrr  indcpnulcncc  by  tliis  country  :  for  ?iich  a  covenant  does  not  cxfrncl 
to  flic  acts  of  wronij  doers,  l)iil  only  to  persons  claiming  title  (n) ;  and 
even  a  general  w  arranty,  w  hicli  is  conceived  in  terms  more  general 
than  the  j)resciil  covenant,  ha«  !)ef'ii  if  Iniiiifd  to  /,■••/"'  interrup- 
tions (A). 

So,  if  a  lease  he  made  for  a  term  of  years  hy  deed,  so  that  the  lessor 
is  chari;eal)lc  by  ^^rit  of  cov(n;uit,  if  a  stranp;er  uhohas  no  ri.L;Iit  oust 
tliut  termor,  yet  he  shall  not  have  a  writ  of  covenant  against  his  lessor; 
for  a  covenant  for  rpiiet  enjoyment  shall  not  beconsfrncd  to  extend  to 
a  wrongful  ejectment  by  a  stran':;er,  unless  so  expressed  ;  because  for 
this  wrona:,  the  lessee  may  have  liis  remedy  by  action  against  the  stran- 
ger himself  (r ). 

But  if  lie  to  uliom  the  ri:;lit  belongs  oust  the  termor,  then  he  sliall 
have  covenant  against  the  lessor  ;  so  if  the  lessee  be  ejected  by  the  les- 
sor himself  (J). 

So,  if  the  lessor  covenants  against  the  acts  of  a  particular  person  or 
particular  persons,  covenant  will  lie  (r). 

If  a  man  covenant  that  he  will  not  interrupt  the  covenantee  in  the 
enjoyment  of  a  close,  the  erection  of  a  gate  which  intercepts  it,  ia  a 
breach  of  the  covenant,  althoiiLch  he  had  a  riqht  to  erect  it  (  /). 

If  the  lessor  covenants  with  the  lessee  tliat  he  hath  not  done  any  act 
to  prejudice  the  lease,  but  that  the  leasee  shall  enjoy  it  "  against  all 
persons  ;"  in  this  case,  these  words  "  against  all  persons"  shall  refer  to 
the  first,  and  be  limited  and  restrained  to  any  acts  done  by  him,  and 
no  breach  shall  be  allowed  but  in  such  an  act  {if). 

In  a  covenant  ihat  the  lessee  shall  quietly  enjoy,  <^r.  with  an  ex- 
ception of  the  kinq,  liis  heirs,  and  successors,  an  interruption  hy  the 
Icing's  patentee  is  a  breach  of  the  covenant  ;  for  such  patentee  is  not 
exceptc<l  (A). 

If  a  lessee  holds  his  estate  on  condition  of  paying  an  annuity,  non- 
payment is  a  breach  of  covenant  for  (juiet  enjoyment,  although  no 
demand  of  it  was  made,  and  the  lessee  liimself  might  have  paid  it  (/). 

But  if  a  covenant  be  to  save  the  lessee  harmless  from  a  rent-charge, 
if  the  lessee  pay  it  without  compulsion,  lie  pays  it  in  his  own 
Avrong  (A).  • 

The  lessor  after  a  demise  of  certain  premises  w  ith  a  portion  of  an 
adjoining  yard,  covenanted  that  the  lessee  shnnlu  have  "  the  use  of 
the  pump  in  the  yard  jointly  with  himself,  whilst  the  same  should 
remain  there,  paying  half  the  expenses    of   repair."     The    words, 

(a)  3  T   R.  481.  if>)  Ibid   M7. 

(.)  U.'id.  n  9.22  H.  6.  52.l'.pl.26.  Cro.  BJi.'.  3U.  (>..  Jac.  *25.  RM  ^   P   IGI. 

{d)  3  T.  U.  .1J7.  n.  »    Cpo.  r.rii.iU  '   Cro.  Kliz  LMJ,   1  Str.  tgo. 

(■/)«. Mod   31P.  Cf)  bhfp  T"--V     --  kc-   }"-    ">  ^     t.  v.  r,-, 

;l)  TS«;ii.  iPi''- 


252  Of  txprcss  (Jovmani6.  [Cliap.  \. 

"  Tvhilst  t9*c."  reserve  to  the  lessor  a  power  of  removing  the  pump  at 
his  pleasure,  and  it  is  no  breach  of  the  covenant,  though  he  remove  it 
vilhoul  reasonable  cause,  and  in  order  to  injure  the  lessee;  but  with- 
out those  worils,  it  would  have  been  a  breach  of  covenant  to  have 
reinovcd  tlie  pump  (r/). 

Iji  cases  v\  herein  the  lease  being-  avoided,  becomes  in  fact  a  nullity,  a 
covenant  for  quiet  enjoyment  is  completely  broken. 

For  pa// meat  of  Bent. — A  covenant  for  the  payment  of  ihe  rent  is 
also  generally  inserted  in  the  lease. 

The  tenant's  liability  to  pay  rent  subsists  during  the  continuance  of 
the  lease,  notwithstanding  he  uiay  become  a  bankrupt,  and  be  deprived 
of  all  his  property  (^). 

So,  where  the  lessee  cox^enants  generally  to  pay  rent,  he  is  bound  to 
pay  it  though  the  house  be  burned  down  (r). 

So,  a  lessee  who  covenants  to  pay  rent  and  to  repair,  with  express 
exception  of  casualties  by  fire,  or  tempest,  is  liable  upon  the  covenant 
for  rent  though  the  premises  are  burned  down,  and  not  rebuilt  by  the 
lessor  after  notice  ;  for  whatever  was  the  default  of  the  lessor  in  not 
repairing,  and  though  it  is  a  hard  case,  yet  the  lessee  must  at  all 
events  perform  his  covenant,  by  which  he  was  expressly  bound  to  pay 
rent  during  the  term  (d). 

The  rule  is,  that  when  the  law  creates  a  duty,  and  the  party  is  dis- 
abled to  perform  it  without  any  default  in  him,  and  he  has  no  remedy 
over,  the  law  will  excuse  him  :  but  when  the  party  by  his  own  con- 
tract creates  a  duty  or  charge  upon  himself,  he  is  bound  to  make  it 
good  if  he  may,  notwithstanding  any  accident  by  inevitable  necessity  ; 
because  he  might  have  provided  against  it  by  his  contract  {e). 

Where  plaintiff  was  lessee  of  a  colliery,  at  the  rate  of  so  much  p^r 
Avey,  and  the  colliery  became  not  worth  working,  upon  the  plaintiif 
offering  to  pay  for  all  the  coal  that  could  be  got,  he  was  relieved  by 
the  Court  of  Cliancery  against  the  future  rent,  and  the  covenant  in  the 
lease  to  work  the  colliery  (/). 

■Of  forehand  Rents  or  Fines. — Another  species  of  rent  occurs,  pay- 
ment of  which  is  generally  stipulated  by  a  covenant  in  the  lease  : 
and  this  is  sometimes  called  a  fore-hand  rent,  «nd  sometimes  a  fore- 
gift  or  income,  but  more  commonly  a  fine,  which  is  a  premium  givea 
by  the  lessee  on  the  renewal  of  his  lease,  and  has  been  considered  as 
an  improved  rent  (§•), 

In  the  case  of  renewal  of  a  lease,  by  an  ecclesiastical  corporation, 
though  a  dean  and  chapter  are  reasonable  in  the  fines  they  demand,  if 
an  accident  delays  the  lease,  which  has  not  happened  from  their  fault 

(n)l  East,  IIG.  (6)7  T.  R'616.  8  T.  R.  6).  (c)  2.  Sir.  763.  1  Ld.  Raym.  1477.  s.  c. 

(d)  1  T.  R.  3)0.  3  Bur.   IfilO.  G  T.   R.  488.  CO  6  T.  R.  7i].  ('/)  2  Br.  R.  311. 

f«-J  1  T.  R.  48C    3  T.  R.  462 


Sect.  II.]  Of  express  Coicnants.  253 

orthat  of  tlic  tenant,  yet  if  it  is   not  completed  till   a   new  member 
conies  in,  he  shall  have  his  proportion  («). 

N'j'iii/ir  Pijr:iv. — A  farther  security  lor  the  payment  of  rent  is  some- 
times aijrced  upon,  Uy  the  insertion  of  a  covenant  hy  the  terms  of 
which  tlie  lessee  forfeits  a  certain  sum  upon  non-payment  of  such  rent. 
This  nomine  f  10 '■mr,  AS  li  is  calhti,  is  incident  to  the  rent,  and  shall 
descend  to  the  heir.  If  an  annual  rent,  therefore,  he  devised,  the 
uominc  poni  passes  as  incident  thereto  and  tJie  grantee  may  have  an 
action  of  dclit  for  t!ic  arrearages  tliereof  ( ';). 

Hy  accepting  the  rent,  however,  the  parly  it  should  seem  waives  tlic 
penalty  (.  ). 

Thou;;h  forfeiture  is  mentioned  to  hciwminr  pocm\  or  for  not  pay- 
ing a  coihteral  sum,  it  is  ii()  noiniiu-  poenr  if  it  1)C  not  of  a  rent. 

A  prnalty  of  a  similar  kind  is  also  inserted  sometimes  in  c;sctl;c 
lessee  di^  for  bricks,  or  lessen  the  quantity  or  value  of  the  soil  by 
similar  means.  IJut  a  covenant  of  this  nature  (unless  the  penalty  be 
siifTicicnlly  great)  is  perhaps  less  expedient,  than  the  implied  one,  or  an 
express  one  to  use  the  land  in  an  hushandlikc  manner,  or  not  to  dig, 
<^-r.  for  a  7W)«/n<7 />0f7nr  in  leases  to  prevent  the  tenant  from  plowing 
(.".f.  gr  )  is  the  stated  daniac^es  [d)  ;  so  t!iat  damages  «'^'<^-  could  n:)t  be 
recoverd-d  beyond  the  amount  of  the  jienalty  in  the  one  ca«e,  whereas  in 
the  other  cases,  the  landlord  would  liave  a  prospect  of  being  recom- 
pensed to  the  extent  of  the  injury  done  (r). 

If  there  \)?  :i  nonihir  pocme  given  to  the  lessor  for  non-payment,  tlic 
lessor  must  demand  the  rent  before  ho  can  be  entitled  to  the  penalty; 
or  if  the  clause  be,  that  if  the  rent  were  behind,  the  estate  of  the 
lessee  should  cease  and  be  void  ;  in  these  cases  tliere  m;;st  be  an  actual 
demand  made  ;  htca'.jse  the  presumj)tion  is,  that  the  less  e  is  alkndant 
on  the  land  to  sivc  hi-;  penalty  and  preserve  |iis  estate,  and  therefore 
shall  not  be  punished  without  a  wilfid  default,  and  that  cannot  be 
made  to  appear  without  a  demand  be  proved,  and  t!iat  it  was  not 
answered;  and  such  demand  must  be  made  at  the  day  prefixed  for 
the  payment,  and  allcdged  expressly  to  have  been  made  in  the 
pleading. — T^c  action  of  ejectment  is  now  the  usual  mode  adopted 
for  taking  advantage  of  the  tenant's  default,  in  which  he  can 
only  plead  the  grncrcd  is'^ue  ;  but  the  lessor  of  the  plaintiir  must 
be  prepared  to  prove  a  demand,  where  a  diinand  is  absolutely  ne- 
cessary (/").  [See  also  post  "  Condition  tore-enter  on  nonpayment 
of  rent."] 

Bond  for  performance  of  Covcnnnts.^U  a  mm  covenants  to  enter 
into  a  bond  to  the  Icss'^c  for  the  cujoyracut  of  certain   lands  demised, 

(n)3Atk:T'.  'i;  Co.  l.lt.  CI.  b.  Cro.  Ellz.  895,  tutir.  USI. 

(e)  Cowp.  :.17.  (Jl  3  AU.39C. 

,,>  i),,,,^..ri   \'y  (;'■    li»c.  Afcr.  f.t  "  t'sqdiUoni."  (O.  S. J  Kul«^*. 


2i)4-  Of  c.rjji'tss  Covtnanis.  [Gliap.  X. 

and  dr;e«  not  express  what  the  Piim  shail  ho,  lie  shall  be  bound  in  sudi 
a  sum  as  is  eqnal  to  the  value  of  the  land  {a). 

A  bond  for  llie  performance  of  covenants  or  agrecnirnts  lias  been 
held  to  be  only  a  security  (u5;der  stat.  8.  A'^  9  ]f.  3.  r.  11.)  to  the  ex- 
tent of  the  penalty  (i).  Yet,  it  has  also  been  held  that  the  penaUy  is 
irereiy  a  security,  and  that  whtre  it  is  not  suHkient,  the  pluintilTnu-y 
recover  damages  as  v.ell  as  the  penalty;  and  that  nothing  can  prove 
the  principle  stronger  than  tlic  constant  practice,  where  an  action  is 
brought  on  a  bond,  of  giving  damages  (r). 

A  bond  for  non  performance  of  covenants  is  forfeited  by  a  breach 
of  a  covenant  in  law  ;  as  if  the  lessee  be  evicted  out  of  the  premises 
demised  (r/). 

Covrnant  to  pan  Taxes. — Witli  respect  to  taxes,  the  tenant  common- 
ly covenants  to  pay  all  public  im{)osilions,  except  the  land-tax. 

Vrhen  one  covenants  v.ith  another  that  he  shall  have  lands  discharg- 
ed of  ail  rents,  the  covenantee  ought  to  he  discharged  of  a  qv.it-rent  (r). 

So,  a  grantee  of  a  fee- farm-rent,  "without  any  deduction,  dcfalcar 
tion,  or  abatement  whatsoever,"  is  entitled  to  the  full  rent  without 
deducting  the  land-tax  (/). 

So,  if  a  tenant  covenant  to  pay  a  rent  without  deducting  taxes,  a 
statute  authorizing  the  tenants  to  deduct,  will  not  rej)eal  tiie  cove- 
nant (g). 

A  covenant  to  pay  taxes  generally  includes  parliamentary  taxes, 
and,  as  a  consequence,  the  land-tax  :  for  when  "  taxes"  are  generally 
spoken  of,  if  the  subject-matter  a\  ill  ]}ear  it,  they  shail  be  intended  par- 
liamentary taxes  given  by  the  crown  (/ ). 

So,  if  a  lease  be  made  for  years,  rendering  rent  free  and  clear  from 
all  manner  of  (axes,  charges  and  impositions  whatsoever,  the  lessee  is 
bound  to  pay  the  Avhole  rent  without  any  manner  of  deduction  for  any 
old  or  new  tax,  charge  or  imposition  whatsoever  (/). 

If  a  tenant  covenant  to  pay  "  all  taxes,"  this  binds  him  to  the  pay- 
ment ofjiuch  taxes  only  as  were  in  being  when  the  lease  was  made, 
and  not  to  taxes  or  charges  afterwards  imposed  (« ). 

So,  a  covenant  to  discharge  from  taxes  extends  to  subsequent  taxes 
of  the  same  nature,  but  not  to  those  of  a  diJi'erent  nature  (/). 

A  covenant  to  pay  taxes  on  the  land  does  not  extend  to  the  rates  to 
church  and  poor,  for  they  are  personal  charges  (?n). 

Covenants  relative  to  this  sul^jecl  are  generally  inserted  in  leases, 
and  are  authorized  by  the  land-tax  acts,  which  provide  "  that  nothing 

(")  3  Co.  78.  a.  (6)  Doug-.  49,  ."JO.  (c)  2  T.  R.  389. 

W  4  Co.  80.  2  Res.  (e)  1  Com.  II  180.  (f)  Doug.fi24. 

(?)  1  l.d.  Rnym.  320.  (A;  Dotij;  6l4,G15.  12  Mod. 55.  168.  II  Mod.  238. 

Ci)  Uac.  Abr.  tit.  "Covenant"  [F.jCarlli.  13.x  Dou?.  624.  (h)  1  Vent.  £23- 

(0  i  Balk.  198.  3.  T.  n.  f,4>.  («,;  C  Jlod  3U.. 


Sect.  II.]  Of  express  Covenants.  2.'>r) 

*' tliciciji  contain.'il  t:li;iU  Iji-  con^lniod  (o  alter,  cliange,  del rrniiiic,  or 
"  make  voi<l  any  CDiitrarlK,  covcnaiifs  or  ai;;iTcmc!it?  \\liatsoevcr,  bc- 
"  twccn  laiullonl  and  tenant,  or  any  other  pcrhuns,  touching  the  pay. 
"  nient  of  tax*. « anil  aH>efsment.«." 

A  (lisliiict  coviTiant  in  a  lease  wlicreliy  tho  tenant  hound  hinipelf  lo 
pay  the  property  tax  and  all  other  taxes  imposed  on  the  pr('iui<(P  or  on 
the  landlord  in  respect  tlurcof:  thnu,^h  voiti  and  illegal  by  the  statute 
40  (f(0.  3.  c.  05.  s.  llo.  will  not  avoid  a  separate  covenant  in  tlic  lease 
for  paynwnt  of  rent  clear  of  all  pailiamentary  taxes  or  s^enerally  ;  for 
such  general  words  u  ill  bo  undeistooil  of  such  taxes  as  the  tenant 
niii;ht  lawfully  eni^age  to  defray  ('/). 

lender  a  covenant  l)y  a  tenant  for  the  payment  of  80/.  yearly  rent, 
all  taxes  thereon  bein:;  to  liini  allowed,  and  also  that  he  woidd  pay  all 
further  or  addilionil  rates  on  the  premises,  or  on  any  additional  build- 
ings or  improvements  made  by  him  ;  and  a  covenant  by  the  landlord  to 
pay  all  rates  on  the  premises,  or  on  the  tenant  in  respect  of  the  said 
yearly  rent  of  80/.,  except  such  further  or  additional  taxes  as  may  be 
assessed  on  the  premises;  the  tenant  is  bound  to  defray  all  increase  of 
the  old,  as  \\(  II  as  any  new  rates,  !)eyond  tiie  proportion  at  whicli  the 
premises  were  rated  at  the  time  of  the  lease,  which  was  20/.  in  respect 
of  t lie  SO/,  rent  {'>). 

Where  land  was  mort;^a^ed  to  secnre  an  annual  payment  of  20/.  to 
a  widow,  in  satisfaction  of  licr  dower,  tlds  antmal  paymenl  bcin^ 
secured  out  of  land  oui^hl  to  answer  taxes  as  the  land  docs ;  but  \i  the 
tenant  in  tijc  payment  of  the  annuity  to  the  widow  omits  to  deduct 
for  taxes,  he  shall  not  make  her  refund  in  ec^uily  ;  [!ud  it  may  be  re- 
covered at  law  in  an  action  of  n^iiui)ip:iit,  ])di)'^  money  paid  to  her  Ui-e, 
<<rc."J(.). 

Covciutnl  to  cultivate  the  Land. — In  Imcbiuulry  leases,  it  is  usual  to  in- 
sert a  special  covenant,  as  In  the  luodc  of  cultivation  ;  for  without  such 
a  covenant,  the  lessee  would  I^e  left  to  his  choice  a-i  to  the  treat u;  nl  of 
the  land  ;  provided  he  breaks  not  the  implied  covenant  to  treat  it  in  a 
hns^/und man-like  manner. 

llespectin-  a  covenant  to  use  tiic  land  in  a  Imsbandnnn-likc  manii'T 
and  to  deliver  it  up  in  like  contlilion,  it  wns  hold  to  be  matter  of  law 
to  determine  what  was  using  the  land  in  an  liiisbandn»an-likc  manner, 
a?ul  Jhtllcr  J.  gave  it  as  his  opinion,  tliat  under  such  a  covenant  the 
tenant  ought  to  use  on  the  land  all  t!ic  manm-e  made  there,  except 
that  wjien  his  time  was  cut,  he  jnight  carry  away  such  corn  and  .«»tra\v 
is  had  not  been  used  there,  and  wa."  not  oii'.iged  to  biin'q;  l)ack  the 
manure  arising  from  it  (r/).  [Thi^  i?  a  covenant  wiii.th  v\e  conceive 
would  be  governed  in  its  con-1  ruction  by  the  mode  in  which  the  land 


2r)(5  Of  express  Covenants.  [Chap.  X, 

demised  had  been  usually  cultivated,  by  the  nature  of  the  soil,  and  by 
the  custom  of  the  country.] 

Indeed,  in  a  recent  case,  it  was  observed  by  Lord  Ellenhorovgh,  that 
evidence  that  an  estate  had  been  managed  according  to  the  custom  of 
the  country,  would  be  always  a  medium  of  proof  that  it  had  been 
treated  in  a  good  and  husbandman-like  manner  (/-/). 

Lessee  covenants  to  leave  sufficient  compost  on  the  soil  of  the  land- 
lord at  the  end  of  the  term,  lie  the  lessee  bavins^  tlie  yard,  barn,  and 
a  room  to  lodge  in  and  dress  diet.  This  was  holden  to  be  a  mutual 
covenant  and  not  a  coiuHiion.  It  differs  from  a  case  where  the  tenant 
covenants  to  repair,  if  the  lessor  finds  sufficient  timber  ;  for  there  the 
proviso  restrains  the  covenant :  but  in  this  case,  said  Lord  Mansficldy 
there  is  not  the  least  foundation  for  such  construction  (Z*). 

To  repair  and  deliver  up  in  good  condition,  Src. — As  to  an  express 
covenant  to  repair,  if  a  lessee  covenants  to  keep  a  house  in  repair,  and 
leave  it  in  as  good  plight  as  it  was  at  tlie  time  of  making  the  lease  {()  ; 
in  this  case,  the  ordinary  and  natural  decay  is  no  breach  of  the  cove- 
nant, but  the  lessor  is  bound  to  do  his  best  to  keep  it  in  the  same  plight, 
and  therefore  should  keep  it  covered  ((/). 

An  agreement  by  the  tenant  to  leave  a  farm  as  he  found  it,  is  an 
agreement  to  leave  it  in  tenantabic  repair  ;  and  w  ill  maintain  a  declara- 
tion so  laid  (r). 

A  covenant  in  a  lease  to  deliver  up  at  the  end  of  tlie  term,  all  the 
trees  standing  in  an  orchard  at  the  time  of  the  demise,  "  reasonable 
use  and  wear  cnly  excepted,"  is  not  broken  by  removing  trees  de- 
cayed and  past  bearhig,  from  apart  of  the  "orchard  which  was  too 
crowded  (/). 

A  genera!  covenant  to  repair,  and  to  deliver  up  in  repair,  extends,  it 
seems,  to  all  buildings  erected  during  the  term  (r;). 

Therefore  where  a  lease  was  made  of  three  messuages  for  forty-one 
years,  in  which  the  lessee  cot'cnanted  "  to  pull  them  down  and  erect 
"  three  others  in  their  place,  and  also  to  leave  tiie  said  premises  and 
"  houses  thereafter  to  be  erected  at  the  end  of  the  term  in  good 
**  repair  ;"  and  afterwards  the  lessee  pulls  doun  the  three  houses  and 
builds  five;  he  must  leave  them  all  in  good  repair  at  the  end  of  the 
term  :  for  though  in  the  hrst  covenant  he  is  hound  only  to  repair  the 
messuages  agreed  to  be  erected,  yet  by  the  last  covenant  he  is  obliged 
to  leave  in  good  repair  the  houses  thereafier  to  be  erected  indefinitely, 
■which  extends  to  all  houses  that  shall  be  built  upon  the  premises  during 
the  terra  {h). 

(a)  i.  Fast'8  n.  \bt.po,t.  C.  XV.  s.  1.  (h)  I-offt's  1?.  57. 

(o)  }  ilz.  Abr.  tit.  "  Covenant,"  fol.  A.  (d)   El  v!d.  2  Ksp.  R.  590.  ante. 

U)  2  l<\.  liep.  (^12.  et  -cid.  F.  K.  B.  145.  K.  post.  r.  XV.  s.  I.  (/)  SCaiii^b.  44n 

'S)  1  Es;).  ^.  P.277.  (A)  Bac.  Abr.tit.  "  Covei.aal."  (F  ) 


• 


Sect.  II.]  Of  express  Covenants.  2j7 

So,  if  a  man  takes  a  lease  of  a  house  and  land,  and  covenauls  to  leave 
tlic  dcnuptul  picniisi's  in  good  n  pair  at  the  end  of  the  term,  and  he 
erects  a  nu-.sma.i^e  upon  pari  of  thr  land,  hesldis  uhat  was  before  :  he 
linist  keep,  or  leave  this  in  good  repair  also  (ti). 

I'lit  in  a  huihiin,;  and  rcpairinfj  h  asc,  a  covenant  "  to  leave  the  «le- 
jnihcd  preniis-s,  with  all  new  erections,  well  rrpaireil,"  was  construed 
to  extend  to  the  new  erections  only  ;  a  sum  of  money  heinj;  a2,rced  to 
be  laid  out  in  new  erections  and  reljuildinii,  and  llie  covenant  *'  to  keep 
iii  repair"  extcndini;  only  to  new  erections  {!>). 

W'liere  in  a  lease  uith  a  clauBC  of  rc-cnlry,  tlicre  is  a  irrneral  coven- 
ant on  the  part  of  the  tenant  to  keep  the  premises  in  repair;  and  it  is 
further  stipulated  hy  an  imiepcmlent  covenant,  that  the  tenant  vithin 
three  njonllis  alter  notice,  f^hall  repair  all  delects  specilird  in  the  notice; 
the  landlord  after  serving  him  \\ilh  a  notice  may  witliin  the  three 
months  hrinj^  an  ejectment  atjainst  him,  fur  a  breach  of  the  general  co- 
venant to  repair  (<). 

A  court  of  equity  cannot  decree  a  specific  performance  of  a  covenant 
to  repair  ;  and  w  here  an  ejectment  is  brou^^ht  by  a  landlord  for  breach 
of  a  covenant  to  repair,  it  would  seem  that  equity  cannot  rdicve  {d). 

Jrcidrjital  lire. — A  Icsi-eiwifa  liouse,  who  covenants  generally  to 
repair,  is  bound  to  rebuild  it,  if  it  be  burned  by  accidental  fire:  so,  if 
the  j)rcmis(s  l)c  consumed  by  liijhtnin^  or  the  Kind's  ct.cmicF,  he  is 
still  liable  (* ). 

Touching-  the  jirogress  of  the  law  as  (o  the  accidental  burning  of 
houses,  so  far  as  regardr,  landlor<l  and  tenant:  at  common  law  kf^i-ecs 
were  not  answerable  to  landlords  for  accidental  or  nei:;!igcnt  burnini^ ; 
then  came  the  statute  of  Ghuccstcr,  \\\\\c\\  l)y  nukiii^j  tenants  for  life 
and  years  lialiie  to  watte  without  any  exception,  consequently  rendered 
them  answerable  for  destruction  by  fire :  thus  fctood  the  law  in  Lord 
Cokt  si'wwv. 

P.ut  now  the  statute  G  Aivic,  c.  31.  the  ancient  law  is  rc5torc<U 
and  the  distinction  introduced  by  tlie  statute  of  ^y/of/f^s/rr  between 
tenants  at  will  an  I  oilier  lessees  is  taken  away  :  rt>r  by  the  Gth  s(ctie,n 
of  that  statute  it  is  enacted,  That  no  action,  suit,  or  proce.-s  whatso- 
ever shall  be  had,  maintained,  or  prosecuted  agai:;st  any  p' r.-on  in 
whose  house  or  chamber  any  lire  shall  accidentally  begin,  or  any  re- 
compence  be  made  by  such  person  for  any  damage  suiiercd  or  occa- 
sioned thereby  :  and  if  any  action  shall  be  brought,  the  deft  .dunt  ir.a^' 
jilead  the  general  issue  and  give  the  Act  in  evidence:  and  in  case  the 
pliintijl'  become  nonsuit,  or  discontinue  his  action  or  suit,  or  if  a 
verdict   pass  against  him,  Ihc  defendant  bhall  recover  treble  costs 

(n)  Bar.  Abr.  lit."Covenint.'"  [FJ  (t)  1  Bur.  2»0. 291.  (e    3  C«m|>b.  »:o. 

(d)  16  Ves.  J.  402.  ,f !  2  Com.  Rep.  c::.  C  T.  R.  CJO.  Py«r. .  -  J  -'    ■     :"'    ■  ^  '•!• 

Jun,  34.  Cg.  Lit.  3'.  a  ■    ' 


i 


258  Of  express  Covenants,  [Cl-ap.  X. 

Section  7.  provide?,  That  nothing  in  the  Act  contained  shall  extend  to 
defeat  or  make  void  any  contract  or  agreement  between  landlord  and 
tenant. 

An  exception  of  accidents  by  fire  is  now  in  many  cases  introduced 
into  leases  to  protect  the  lessee,  who  would  (as  we  have  seen)  be 
liable  to  rebuild  under  his  covenant  to  repair  (rt)  ;  and  where  lessee  of 
a  house  and  whari  covenanted  to  repair,  accidents  by  fir;;  excepted  ; 
the  house  was  burned  down,  and  the  lessor  having  insured  received 
the  insurance  money,  but  neglected  to  rebuild  ;  and  brought  an  action 
at  law  for  the  rent;  a  bill  for  an  injunction  till  the  house  was  rebuilt 
was  held  proper  (Jj). 

But  though  such  exception  will  protect  the  lessee  from  his  covenant 
to  repair,  yet  he  is  liable  (as  we  have  also  seen)  to  pjiyment  under  a 
covenant  to  pay  rent,  though  the  prenji.ses  be  burnt  down  and  not  re- 
built by  the  lessor,  by  which  he  is  deprived  of  all  use  and  enjoyment  of 
them  (r). 

There  is  no  equity  in  favour  of  a  lessee  of  a  house,  liable  to  repair, 
■with  the  exception  of  damage  by  fire,  for  an  injunction  against  an  ac- 
tion for  payment  of  rent  upon  the  destruction  of  the  house  by  fire  (J). 

AVhen  there  is  a  covenant  to  repair  on  the  part  of  the  lessee,  if  his 
pull  down  houses,  no  action  will  lie  against  him  till  the  end  of  the 
term,  for  before  that  i)eriod  he  may  repair  them.  But  if  he  cut  down 
timber  or  trees,  covenant  lies  immediately,  for  such  cannot  l)e  replaced 
in  the  same  plight  at  the  end  of  the  term  {e). 

If  the  covenant  be,  *'  it  is  agreed  that  the  lessee  shall  keep  the 
"  house  demised  in  good  repair,  the  lessor  putting  it  in  good  repair," 
covenant  lies  against  the  lessor  on  these  words,  if  he  do  not  i)ut  it  into 
repair  (/). 

It  has  been  held,  that  if  the  lessor  covenant  to  repair  during  tlie 
term,  if  he  will  not  do  it,  the  lessee  may  repair  and  pay  himself  by 
■way  of  retainer  (.j)  ;  but  Holt,  C.  J.  doubted  of  tliis,  un!  -^s  there 
"was  a  covenant  to  deduct  the  expense  of  the  rcjjairs  from  the  rent :  and 
though  cases  occur  in  the  books,  wherein  it  has  been  thought  by  some 
of  the  Judges  that  a  lessee  might  expend  part  of  the  rent  in  repairs 
of  the  i)remises  if  they  re(]uircd  repair,  and  might  set  oii  such  expen- 
diture in  an  action  either  of  debt  or  covenant  for  rent ;  yet  such  an 
opinion  is  erroneou';,  for  the  lessor  and  lessee  have  their  respective  reme- 
dies on  the  covenants  contained  in  the  lease:  and  the  maxim  of  law, 
*'  so  to  judge  of  contracts  as  to  prevent  a  multiplicity  of  suits,"  docs  not 
apply  (//). 

So  that  the  point  seems  to  be  now  settled  ;  for  upon  a  plea  of  nU 

(a)  6  T.  .P..  nsi.  (fc)  Ambl.  C20.  (c)  1  T.  R.  310.  anlc.  V-  '■'■-^-  f"^^  laVrs.J.  115. 

(r;  F.  N.  B    115.  K.  (/)  I   Esp.  N.  P.  278.  C?)  1  L«0)i.  237.  Cro.  tU*  2'ii. 

1  I.'J.  Uaym.  il'O.  0  Mod.  60.  (A)  1  T,  H.  4aS, 


Sfcci.  U.]  Of  txjjrtss  Lutritauts.  2./.» 

d^fiet  ii)  ail  ac(ii>n  of  debt  for  rent,  the  cltfriidant  cannot  i;ivc  in  evi- 
dence disfjuri'tnicnts  for  ncc<-.s«ury  rip.iirs,  for  lir  might  have  liad  co» 
vcnant  against  hini  (a). 

Whcif  notice  of  pulliii!^  down  and  rebuildin:;  a  party-flall  was 
given  under  t!ic  HniUiini;  Ad  11  ^'.  ;>.  f. ',  8,  and  the  tenant  of  the 
adjoinin.',  '  lio  was  under  covenant  to  repair,  finilitig  it  necessary  in 
cuns({]iirnce  to  phnre  up  his  house,  and  to  pidl  down  and  replace  tlie 
wainscot  and  partitions  of  it,  instead  of  leavini;  f.iich  expeti.  s  to  he 
incurred,  and  paid  by  the  owner  of  the  house,  givin:^  notice  in  the 
manner  prescribed  by  the  Act,  employed  workmen  of  his  own  to  do 
t!ie  neces.-ary  work?  and  paid  them  for  the  Fame  :  hehl,  tliat  he  conhl 
not  recftvcr  over  atraiiist  iiis  hindlonl  such  expenses  incurred  by  his 
own  oidors,  and  paid  for  by  him  in  llm  first  instance,  the  landhird 
bein^j made  to  rcimljurfe  his  ten. mt  only  in  these  ca^e^,  wiiere  money 
has  been  paid  by  the  tenant  to  the  owner  of  liie  adjoining  house,  fur 
works  done  by  him  (/>). 

A  covenant  to  repair  is  a  covenant  that  nnist  run  with  the  Ian<l,  for 
it  allecfs  the  estate  of  the  term,  and  the  reversion  in  tiic  hands  of  any 
person  that  has  it  (r). 

Covenant  tn  rrsidc  on  ihc  I'nmisrs. — A  covenant  in  a  lease  that  the 
lessee,  his  executors  and  admiiiistratorf-,  shall  constantly  "  reside  upon 
♦'  tlie  denjised  premises"  during  the  demise,  is  bindini;  on  the  a«sijj^nee 
of  the  lessee,  though  lie  be  not  named.  Indeed,  t!ie  1st  and  6th 
resolutions  in  Spencer's  case  are  directly  in  poifit  :  which  resolutions  are 
1st.  That  when  the  covenant  extends  to  a  thin:;/«  rssc^  parcel  of  the 
demise,  the  thini?  to  be  done  by  force  of  the  covenant  is  rjuodam  modo 
annexed  and  appurtenant  to  the  thing  demised  and  shall  go  with  the 
land,  and  shall  bind  the  assii;nee,  altiu)Ugh  he  be  not  bound  by  ex- 
press woriis  :  Cth.  That  if  lessee  for  years  covenants  to  rejjair  the 
houses  during  the  term,  it  shall  bind  all  others  as  a  thing  which  is 
appurtenant,  an<l  gocth  with  the  land,  in  whose  haiuis  soever  the 
t( rui  si. all  come,  as  w eil  tliose  w  ho  came  to  it  by  ait  of  law  as  by  the 
act  of  the  party  ;  for  all  is  one,  hav in:;  regard  to  the  lessee.  And  if 
the  law  should  not  be  sucli,  great  prejudice  nu'ght  accrue  to  him  :  and 
re.isou  requires  that  they  wjio  shall  have  the  benefit  of  sucli  cove- 
nant when  the  lessor  makes  it  with  the  lessee,  should  on  the  other 
fiiXt  be  bound  by  the  like  covenant,  when  the  lessee  makes  it  with  the 
lessor  {(I). 

So  where  A.  gave  by  will  his  tenant-right,  which  he  held  by  Iciso, 
to  l>.  but  not  to  diF|)ose  of,  nor  sell  it  ;  and  if  he  refused  '•  to  ilwell 
"  there  or  keep  it  in  his  own  po?scvsion,"  tiuni  that  C.  should  have  hiu 
**  tenant-right  of  the  Lirm."     B.    having    borrov/cil   n)oij!  y,  left  the 


260  Of  express  Covenants.  [(.hap.  ^. 

title  (lends  witli  his  creditor  as  a  security,  and  confessed  a  judgment  io 
secure  tiic  money  ;  and  having  also  given  a  judgment  to  another 
creditor  who  issued  an  execution  against  him,  the  sheriff  sold  the  lease 
to  the  creditor  uilli  whom  the  deeds  were  deposited,  he  paying  the 
dcl)t  of  the  plaintiff  in  the  execution  :  and  B.  having  left  the  premises 
antl  ceased  to  dwell  there  on  the  day  of  the  execution,  before  the 
sheriff  entered  :  it  was  holden  that  C.  the  remainder-man  was  entitled 
to  enter,  for  that  the  acts  of  B.  amounted  to  a  voluntary  departing 
with  t lie  estate  («). 

Not  to  pcrntit particular  Trades  to  be  carried  on, — In  leases  of  tene- 
ments, especially  in  towns,  a  covenant  is  frequently  inserted  to 
restrain  the  lessee  from  carrying  on,  or  assigning  the  houses  to  per- 
sons carrying  on  obnoxious  trades,  and  also  from  having  or  pernut- 
ting  any  sale  of  furniture  in  the  house  ;  a  precaution  which  ];ccomcs 
very  necessary,  not  merely  from  the  injury  which  may  otJierwise  be 
donctothe  premises,  but  likewise  from  the  respectal)ility  being  lessen- 
ed, and  the  good-will  of  them  being  thereby  diminished  (0). 

If  the  lessee  of  a  house  covenants  not  to  lease  tiie  shop,  yard,  or 
otiier  thing  l)elonging  to  the  house,  to  one  u  ho  sells  coals,  nor  that 
he  himself  will  sell  coals  there,  and  afterA\  ards  he  leases  all  the  houss 
to  one  who  sells  coals,  he  has  broken  the  condition  (r). 

AVhere  the  lessee  of  a  house  and  garden  for  a  terra  of  years,  cove- 
nanted not  to  use  or  exercise  any  trade  or  business  whatever  ;  and 
afterwards  assigned  the  lease  to  a  Schoolmaster,  who  carried  on  his 
bijsiness  in  tlie  house  ;  the  assignment  was  held  to  be  a  breach  of  the 
covenant  (c/). 

Schedule  of  the  Goods. — In  case  of  the  lease  of  a  house,  together  with 
the  goods,  it  is  usual  (as  we  have  before  mentioned)  to  make  a 
schedule  thereof  and  affix  it  to  the  lease,  and  to  have  a  covenant  from 
the  lessee  to  re-de!iver  them  at  the  end  of  the  term  ;  for  w  ithout  such 
covenar.t  the  lessor  can  have  no  remedy  but  trover  or  detinue  for  them 
after  the  lease  is  ended  :  for  as  the  law  does  not  create  any  covenant 
upon  such  personal  things,  an  express  covenant  becomes  necessary  (c). 

Covcvant  not  to  assign. — A  covenant  not  to  assign,  and  a  proviso  of 
re-entry  in  case  the  lessee  do  assign,  are  generally  contained  in  leases. 
I'hc  landlord  relies  perhaps  on  the  tenant's  honesty  ;  or  he  approves  of 
his  skill  in  farming,  and  thhiks  that  he  will  take  more  care  of  the  farm 
than  another  ;  and  therefore  he  has  a  right  to  guard  against  the  event 
of  the  estate's  falling  into  the  hands  of  any  other  person,  who  may 
not  manage  it  so  well  as  the  original  tenant :  indeed  it  is  but  reasonable 
that  a  landlord  should  exercise  his  judgment  with  respect  to  the  person 

00  2  T.  R.  <81.  tt  vide  8  T.  R.  300.  post.  (b)  2  T.  11.  14!. 

(r)  Han.  Abr.  tit.  "  Condition."  [O.]  (d)  I  Maule  and  6elw.  9i. 

(>,>  "■•i"..  Abr.  tit.  "  Covenant"  [B.]  ante  142,  0 


Sect.  H.]  Of  f.vpress  CoKiuniLs.  ji.l 

to  whom  lie  trusts  the  inainm'mcnt  of  his  cstiitc;  a  Covenant,  there, 
fore  not  to  assign  is  Ic;;al,  and  covtnaiits  to  that  ertcct  arc  frequently 
inserted  in  leases  (a). 

But  under  ^n  a^jrccnicnt^for  a  lease  the  lessor  is  ixot  without  express 
stipulation  entitleil  to  a  covenmt  restrainin:^  ulidiafion  without  li- 
cence ;  as  a  proper  and  usual  covenant  (//). 

The  power  of  assi;;nnient  is  incident  to  the  estate  of  a  lessee  with- 
out the  word  "  assigns"  unless  expressly  restrained  ;  and  such  res- 
traints on  alienation  arc  construed  with  jealousy  ('). 

If  a  lessee  foi' years  covenant,  that  if  he,  his  executor?,  or  assigns 
alien,  it  sliall  be  lawful  for  the  lessor  to  re-enter :  it  seems  this  is  a 
good  contlilittti,  and  not  a  covenant  only;  and  the  lessor  may  lake  it 
as  either  a  covenant  or  a  condition,  hut  not  as  both  (<l). 

A  clause  in  the  lease  in  these  words,  Provided  always  and  it  is  fur- 
ther coven  lilted,  that  the  lessee  shall  not  assign  his  term  to  any  other, 
except  to  the  lessor,  paying  as  much  as  another,  and  tli.it  if  the  lessor 
will  not  have  it,  then  the  lessee  may  alidi  it  to  none  except  his  mother 
©r  his  son,  was  held  to  he  a  good  condition  to  defeat  the  estate,  for 
*'  provided  always"  implies  a  condition,  if  there  he  not  words  subse- 
quent which  may  peradventurc  chani;e  it  into  a  covenant;  as  where 
there  is  another  penalty  annexed  to  it  for  non-performance  (r). 

If  a  lease  contain  a  condition  that  the  less.-e  shall  not  assign  without 
licence,  and  tlie  lessor,  after  notice  of  the  assignment  without  li- 
cence, accept  of  rent  from  the  assignee,  he  dispenses  witli  the  con- 
dition (/). 

I'or  it  is  to  be  obscrvetl,  that  where  the  lease  is  ipso  facto  void  by 
the  condition,  no  acceptance  of  rent  after  can  make  it  have  a  con- 
tmuancc  (if)  ;  otherwise  it  is  of  a  lease  voidable  by  entry;  because 
the  acceptance  of  rent  cannot  make  a  new  lease  and  the  olil  one  was 
determined  ;  but  the  acceptance  of  rent  in  the  latter  case  is  asulhcient 
declaration  that  it  is  the  lessor's  w  ill  to  continue  the  lease,  for  he  is  not 
entitled  to  the  rent  but  by  the  lease  (//).  IJiit  the  acceptance  of  rent 
after  a  condition  broken,  without  notice  of  the  breach,  is  not  aconti- 
nuanry  of  the  estate;  except  the  condition  be  of  such  a  n.'.tnre  as  to 
be  equally  within  the  conusance  of  both  lessor  and  lessee  (/). 

If  a  man  lease  a  house  antl  land,  upon  condition  that  the  lessee 
shall  not  parcel  out  the  land,  nor  any  part  tliereof  from  the  house, 
and  afterwards  the  lessee  leases  the  hoii  e  and  part  of  the  land  to  one, 
and  leases  the  residue  of  the  land  to  another;  this  is  a  breach  of  the 
condition;  for  by    tlie  word  "parcelling"  is  intended  a  division  or 

(a's  2T.  n  13«.                     (h)  15  Vei.  J   SiJ  '.  Vej  2iM-5. 

(<l)  Sbep.  Touch.  124  and  n.  2  C«/  C.o.  Elit  242. 

if)  Cro  Car.  511    Cro    tiu.  472.  2T.  U  .:1''..  (/I  Co.  Lit  2iy  g.  WiHtj.  lO. 

\h)  Dsut-  50.  Cowj).  11^.                              («i  Cro.  Eli?  4».  2  T.  P.Oi. 

35 


■I\r2  Df  (Aprti^s  L'oiomnls,  [Chap.  ^. 

scparutiuM  ofUic  land  from  llic  hodse:  it  a\;is  llicieforc  acljiulgetl  that 
Wvd  fust  L'.raiit  was  a  !)jTacli  of  the  condition,  i)ecause  every  division 
and  severance  of  the  house  and  land  is  within  the  words  and  intent  of 
the  condition  (^0-  Kut  if  the  lessor  afterwards  accept  of  rent,  it  Mill 
l)ar  his  entry  for  the  condition  broken.  For  wliere  a  lease  for  years 
was  nude,  upon  condition  to  be  void  if  the  lessee  assii^ncd  over  the 
tt.;n.' ;  he  afterwards  made  an  assignment,  and  the  lessor,  knowing  it, 
accepted  the  rent :  adjudged,  that  this  Mould  not  make  the  Icasd good, 
because  it  was  ai>solutely  void  before  the  acCe})tance  {h). 

^\' here  the  covei^ant  was  not  to  assign  the  whole  or  any  part  of  the 
Ian. Is  demised  wiliioiit  the  lessor's  consent,  and  the  lessor  entered  into 
part  himself,  and  then  the  lessee  assigned ;  this  was  held  to  be  a  breach 
of  the  covenant,  notwithstanding  the  lessor's  entry  (c). 

If  tlie  lessee  reserves  the  rent  to  himself  on  granting  over,  it  is  an 
under-lease  and  not  an  assignment,  though  he  })arts  with  the  whole 
term  ;  for  what  cannot  be  supported  as  an  assignment,  shall  be  good 
as  an  imder-lease  against  the  party  granting  it  {d). 

So  wliere  the  covenant  was  '<  That  the  lessee  should  not  assign  over 
"  his  term  without  the  lessor's  consent  first  had  in  writing,"  and  the 
lessee  devised  the  term  without  any  such  consent  obtained  ;  this 
was  held  not  to  be  such  an  assignment  as  was  a  breach  of  the 
covenant  (r). 

But  whiether  it  would  be  so  held  at  this  day,  may  well  be 
doubted  (/). 

If  a  iesFce  for  years  covenant  not  to  alien  without  licence  of  the 
lessor,  under  penalty  of  forfeiting  the  lease,  and  he  afterAvards  aliens 
without  licence,  equity  will  not  relieve  him  {g). 

But  if  a  condition  be  to  do  such  an  act,  and  the  lessor  dis- 
charges him  of  part,  the  whole  condition  is  destroyed  ;  as  if  a  condi- 
tion be  to  plouj^li  his  land,  or  build  his  house,  and  he  discharges  him 
of  part  (/(). 

So  wliere  the  lessor  license  his  lessee  to  alien  part,  he  may  alien 
\]\Q.  residue  without  licence;  for  the  lessor  cannot  enter,  because  if  he 
should  enter  for  the  condition,  he  should  enter  upon  the  entire,  as  it 
was  linuted  ;  and  if  he  should  enter  upon  the  entire,  he  would  destroy 
that  which  he  had  licensed  to  be  aliened,  which  he  cannot  do  (i). 

Indeed,  on  a  proviso  that  the  lessee  and  his  assigns  shall  not  alien 
without  licence,  if  the  lessor  give  licence,  the  condition  is  entirely  de- 
stroyed, and  the  assignee  may  afterwards  assign  or  demise  the  whole 
or  any   part  of   the    term    without    licence.     But  it    is  otherwise 

(a)  T5ac.  Abr.  (it   "  CoudiUons."  [O]  (b)  Cro.  Eliz.  528.  1  Salk.  4.  (c)  Style,  265 

(<1)  1  Htr.  406.  Serf  vide  Dou?.  T87.  (e)  triyle,  483.  (/)  Cro.  Eliz.  816.  3T.  K.425. 

(?;  B  Mod.  112.  (h)  Com.  Dig.  tit.  "  Cnndilion  "  [Q..]  1  Roll.  471.  1.  47.  52. 

(i)  ir.id.  1.  42:  Cro.  Eliz.  SIC.  Uumiior's  case,  408.  12  Ves.  191. 


iSecl.  I  I.J  Of  i.rpress  Coienants.  ^O;* 

olii  devise  of  the  term,  for  tlmt  would  li.ive  been  ;i  I)r«»uli  of  th*-  i>u. 
dilioii  (n). 

So,  if  a  lease  he  upon  cornlilion,  that  the  Icfscc  or  his  a«sit;iLs 
shall  not  alii  ri,  unless  to  his  ImoHkt  :  if  the  Ies«ec  O-ssiijns  hi^ 
term  to  his  liiuthcr,  it  seems /;/  "-h;! II  iidf  lie  rr-lr.ilncd  I»v  fh.- <  .hhII. 
lion  (0), 

A  proviso  in  a  lease  for  re-cniry  upon  assi;;nment  l>y  the  lcsM*e,  Iiis 
executors,  aiftninistrators,  or  assi^^s  without  licenci  eeasts  l>y  assii;ii- 
iiient  with  licence  though  to  a  particular  individual    ('). 

But  ifa  Icafic  he  upon  condition  to  hu»;l)and  and  \\  iii-,  that  if  it  conies 
to  any  oth<r  hand  than  their  ou  n,  and  their  issues,  the  lessor  sh.dl  re- 
enter if  the  hushand  dies,  and  the  wife  tik(s  another  hu-!)anil,  the  les- 
sor sliall  re-enter  (d). 

So,  also,  if  tlie  lease  contain  a  proviso,  that  the  lessee,  his  executors, 
or  avlminislrators,  shall  not  set,  lei,  or  assign  over  the  whole  or  any 
part  of  the  demised  premises  without  licence  in  writing  on  pain  of  ft)r- 
feiting  the  lease,  the  administratrix  of  the  Iwsce  cannot  under-let  w  ilh- 
out  incurrini;  a  forfeiture.  A  parol  licence  to  let  part  of  tlu^  premises 
docri  not  dischar:;e  the  lessci-  from  the  restriction  of  such  a  proviso; 
for  as  til c  party  is  charged  hy  a  suHicient  writing,  so  uui^t  he  In;  dis- 
charged hy  asufiicicnt  writing,  or  something  of  as  high  an  authority, 
agreeable  to  thei.iaxim  unian  (jnodquc  dUsobitur  co  liifotniiif  i/no  //  -n- 

titr  (r). 

Ifa  lease  he  made  to  a  man  and  Ins  assigns  for  twe:ity-nn'.:  year.-, 
proxiiled  that  lie  shall  not  assign,  the  proviso  l)eing  repugnant  to  the 
premises  is  void  ;  hut  it  would  have  hccn  good,  if  the  word  *'  assigns," 
hatihecn  omitted  (  /). 

A  proviso  against  assignment  without  licence  in  a  !< .  '  lo  a  lessee, 
his  executors,  admiiustrators,  and  assigns,  is  not  repugnant,  the  con- 
struction being  such  assigns  as  he  may  lawfully  have,  vix.  hy  licence, 
or  hy  law,  as  assignees  in  hanlruptcy  (if). 

A\'hcre  a  lessee  covenanted  thai  ncillur  he  nor  his- executors  or  .'u!- 
ministrators  would  assign  the  term  without  the  lessor's  consent,  with 
a  power  of  re-entry  to  the  lessor  in  su.h  case,  and  that  the  lease 
shoidd  he  void*;  the  lessee  died,  his  executor  entered  and  afterwards 
])ecMne  a  bankrupt,  and  the  lease  was  assi-ncd  over  hy  the  assignees 
under  his  commission  for  a  valuable  consider.ilion  to  the  pliintill*,  who 
brought  his  hill  in  equity  to  he  relieved  againd  the  provi^^o,  and  to 
stay  proceedings  in  an  ejectment  brought  against  him  upon  it  :  J.ord 
Mnr(l('s/if:lii  held  clearly  that  llic  as^i^nuu  tit,  being  done  by  Ihc 
aidiiority  of  a  statute,  would  supersede  awy  private  agreement  betw  cen 

(n)Cnin.  nic.  tit.  "  ConJilion.,'  fQ.)  I  J;«ll.  Ah.«7I.  Cro.  K!lx.8ir..  OmniKir't  rrnc,  4r0    12  Vcs  I  " 
,b)  Com.  Us  (il  "  Con(iiiion.^'[F.]  I  Il<.  t  4.2  I   10         (V^  !•.  N  .■»  173  /yloin.  ni;f:  ■<<  nn'-    ;  <  1 


264  Of  express  Covtnanls.  [Chap.  X, 

the  parties,  and  that  the  assignment  by  the  assignees  was  no  breach  of 
the  condition  {a). 

But  though  bankruptcy  supersedes  an  agreement  not  to  assign  with- 
out licence,  that  has  been  held  only  in  favour  of  general  creditors  ;  and 
■where  there  is  no  actual  lease,  but  it  rests  upon  agreement  to  grant  a 
lease,  an  individual  cannot  have  a  specific  performance  in  opposition  to 
such  proviso,  and  it  is  very  doubtful  whether  the  general  assignees 
could  obtain  it,  even  if  there  was  no  such  provision  {b). 

Although  conditions  in  restraint  of  alienation  are  legal  and  unusual, 
courts  of  law  have  always  held  a  strict  hand  over  such  methods  of  de- 
feating leases,  and  have  countenanced  very  easy  iuodes  of  putting  an 
end  to  them  (r). 

•  Therefore  where  the  words  of  the  condition  were  "  That  the 
"  lessee,  his  executors  or  administrators,  shall  not  at  any  time  or 
"  times  during  this  demise,  assign,  transfer,  or  set  over,  or  other- 
*'  wise  do  or  put  away  this  present  indenture  of  demise,  or  the  pre- 
*'  raises  hereby  demised,  or  any  part  thereof;"  it  was  held  that  this 
condition  was  not  broken  by  an  urrder-lease ;  for  that  "  assign, 
*'  transfer,  and  set  over,"  were  mere  words  of  assignment,  Avliereas 
the  present  was  an  under-lease,  [the  vvprds,  "  demise  over"  were  omit- 
ted in  the  proviso  ;]  and  that  devising  a  term,  [see  Dae.  Abr.  tit.  Con- 
ditions., O.]  or  the  lessee  becoming  a  bankrupt,  or  dying  intestate, 
would  be  "  a  doing  and  putting  away  the  lease ;"  so  being  in  debt, 
by  confessing  a  judgment  and  having  the  term  taken  in  execution, 
was  the  like:  but  that  none  of  these  amounted  to  a  breach  of  this  con- 
dition {d). 

So,  upon  the  principle  of  one  of  the  grounds  of  adjudication  in  the 
preceding  case,  it  has  been  held,  that  a  lease  taken  in  e'xecution  on  a 
warrant  of  attorney  to  confess  a  judgment  given  l)y  the  lessee  is  not  a 
forfeiture  of  the  lease,  under  a  covenant  by  such  lessee  "  not  to  let,  set, 
assign,  transfer,  make  over,  barter,  exchange,  or  otherwise  part  with 
the  indenture,  tfr."  for  a  distinction  is  to  he  taken  between  those  acts 
which  a  party  does  voluntarily,  and  those  that  pass  in  invitum:  of 
which  latter  class  is  the  one  in  question  [e). 

But  where  it  appears  that  the  warrant  was  executed  for  the  express 
■purpose  of  getting  possession  of  the  lease,  the  maxim  applies,  that 
that  which  cannot  be  done  per  direetwu,  sliall  not  I)e  done  per  obli- 
fuum:  in  such  case,  therefore,  it  l)eing  in  fraud  of  the  covenant,  the 
landlord  may,  under  a  clause  of  re-entry  for  breach  of  the  condition,, 
recover  the  premises  in  an  action  of  (\jcctmcnt  from  a  purchaser  under 
the  sheriff's  sale  C/J. 

ia)  2.  T.  K.  ia«.  (6)  \'2  Ves.  504. 

(c)  2  Bl.  Rep.  767  3  U'ils.  Z'.5.  s.  c.        (d)  Ibid. 

(,»)  8.  T.  R.  «•  (/;  8  T.  B.  390. 


Sect.  II,]  Of  expnss  Covamnh.  Hiij 

"Wliorc  one  leased  for  tuenty-oiic  years  if  the  tetiaiit,  hi?;  executors, 
ii'C.  (ilioiild  so  eoiittniie  to  iiihaltit  and  dwell  in  tlie  f.iriu-iioii>^e,  aiuL 
actually  occupy  the  land,  cS'r.  and  not  let  or  assign  over  t lie  lease  : 
held  that  the  tenant  having  become  hanhrupt,  and  hin  ai;signcp>  lav- 
ini;  poPHesKcd  theinselvct;  of  the  prenii.'^cs  and  solii  the  lease,  and  tlie 
bankrupt  beinijout  of  the  actual  possession  and  occupation  of  the  farm, 
the  lessor  miu;ht  maintain  an  ejectment  without  previous  entry  ('<). 

An  assii^innent  i>y  oi)eratinn  of  l.iw  is  not,  it  shotdd  seem,  a  breach 
of  a  general  covenant  of  this  nature  :  the  landlord,  then  fore,  does 
well  to  protect  himself  as  far  a^  he  can  l)y  the  particularity  of  tho  words 
contained  in  his  covenant  (/'). 

'J'hus  a  proviso  in  a  lease  liiat  the  landlord  shall  re-enter  on  the  ten- 
ant's committinq:  an  act  of  bankr.ptcy  whereon  a  conuuission  shall 
issue,  is  good  ;  for  it  is  a  proviso  not  contrary  to  any  express  law,  or  to 
reason,  or  public  policy;  and  the  landlord  in  such  rase  parts  with  his 
term  on  account  of  his  personal  conP.dencc  in  his  tenant,  which  is 
manifestly  the  case  in  all  leases  where  clauses  aijainst  alienation  are  in- 
serted (r). 

A\'liere  there  is  a  right  of  entry  giveji  for  assigning  or  under-letting, 
if  a  person  is  found  in  tiic  premises,  appearing  as  the  tcriatit,  it  is 
prima  facie  evidence  of  an  miderdetting  suflicicnt  to  call  upon  the 
defendant  to  sliew  in  what  cliaractcr  such  person  was  in  possession,  as 
tenant,  or  as  servant  to  the  lessee  ((/). 

Covrnaiit  to  insure. — A  covenant  in  the  lease  of  a  liouse,  to  inPiiro 
durii;g  the  term  to  a  i;iven  amount  in  some  sulhcimt  insurance  ofhcc, 
is  not  void  for  uncertainty;  but  means  that  the  premises  shall  b^ 
insured  against  fire  in  some  oflice  where  such  iii-m-.tnccs  arc  usually 
eilected  (r). 

Construction  of  eoveiiants,  I'l-c. — A  covenant  in  an  indenture  of  lease 
for  twenty-one  years  from  Alichaelmas,  that  the  tenant  should  not, 
during  the  term,  cut  down  any  of  the  coppice  of  less  than  ten  years' 
growth,  or  at  any  unseasonable  time  of  the  year  :  but  at  the  end  of  the 
term  the  lamlhjrd  agreed  to  pay  to  the  tenant,  the  value  of  all  such 
growth  of  coppice  as  should  be  then  standing  and  grow  ing  ;  was  held 
according  to  its  grammatical  construction  (uncontrolcd  by  any  other 
part  of  t!ie  instrument  shewing  a  dillcrent  intent)  to  bind  the  land- 
lonl,  to  whom  the  words  of  the  covenant  wereto  he  attril)utet!,  to 
pay  the  tenant  for  the  value  of  all  the  coppice  of  Icps  than  I'-ri  years' 
growth  left  stantling  on  tho  demised  premises  at  the  end  of  the  term  j 
tiiough  no  special  consiilcration  appeareil  on  the  face  of  the  d:ed  for 
the  landlord's  agreeing  to  make  a  compensation  to  the  tenant -for  (he 
value  of  such  part  of  the  coppice,  which  tht-  tenaiil  was  not  entitled 

(a)  8  T.ast,  lEi.  (b)  2  T.  R.  l.U  r     n.,'1    '?>,  l« 

(d,  5  Esp  4  (t'aCBmph    VM 


26G  O/  express  Covenants.  [Cliap.  X. 

to  cut.  One  Judge,  who  dissented,  thonght  tliat  the  words  "  such 
growth"  referred  to  a  growth  of  ten  years,  though  Inaccurately  ex- 
pressed ;  founded  on  a  strong  presumption  of  the  meaning  of  tlic 
parties,  as  gathered  from  the  restriction  on  the  tenant  not  to  cut  cop- 
pice of  less  than  ten  years'  growth ;  and  to  the  period  of  the  year 
when  the  tenancy  would  end ;  which  was  before  the  cutting  season, 
but  after  a  portion  of  the  coppice  would  be  of  ten  years'  growth  {a). 

The  assignor  in  a  deed  of  assignment  of  a  lease,  after  reciting  the 
original  lease  granted  to  another  for  the  terra  of  ten  years,  which  by 
mesne  assignments  had  vested  in  him,  and  that  the  plaint ijT  had  con- 
tracted for  the  absolute  purchase  of  the  premises ;  bargained,  sold, 
assigned,  transferred,  and  set  over  the  same  to  the  plaintilf,  for  and 
during  all  the  rest,  &c.  of  the  said  terra  of  ten  years,  in  as  ample 
manner  as  the  assignor  might  have  held  the  same,  subject  to  the  pay- 
ment of  rent  and  performance  of  covenants ;  and  then  covenanted  that 
it  Mas  a  good  and  subsisting  lease,  valid  in  law,  in  and  for  the  said 
premises  thereby  assigned,  and  not  forfeited.  See.  or  otherwise  deter- 
mined, or  become  void  or  voidable.  It  was  held  that  the  generality  of 
this  covenant  for  title,  which  was  supported  by  recital  of  the  bargain 
for  an  absolute  term  of  ten  years,  was  not  restrained  by  other  cove- 
nants which  went  only  to  provide  for  or  against  the  acts  of  the 
assignor  himself  or  those  ^vho  claimed  under  him  :  such  as,  1st,  a 
covenant  against  incumbrances,  except  an  under-lease  of  part  by  the 
assignor  for  three  years ;  2dly,  for  quiet  enjoyment :  3dly,  for  further 
assurance  :  and  therefore  where  it  appeared  that  this  original  lease  was 
tor  ten  years,  determinable  on  a  life  in  being,  which  dropped  before 
the  ten  years  expired,  thougli  not  till  after  the  covenant  of  the  assignor, 
it  was  held  that  the  assignee  might  assign  a  breach  upon  the  aljsolute 
covenant  for  title  (/v).  ,  ^ 

In  the  execution  of  an  agreement  for  a  lease  with  proper  covenants, 
the  party  has  a  right  to  such  covenants  as  arise  out  of  the  general 
well-known  practice  as  to  such  leases ;  and  not  contradicting  the  inci- 
dents of  the  estate  belonging  to  a  lessee  ;  one  of  which  is  the  right  to 
have  the  estate  without  restraint,  beyond  what  is  imposed  upon  it  by 
operation  of  law  ;  unless  there  is  an  express  covenant  for  more. — 
Where  there  is  an  agreement  of  this  kind,  the  law  implies  what  are 
proper  covenants,  as  connected  with  the  character  and  title  of  the 
lessor  (f ). 

Where  a  man  entitled  to  an  estnte  of  inheritance  agrees  to  make 
leases  with  a  covenant  for  perpetual  renewal,  eacii  lease  to  contain  the 
same  covenant  for  ever,  the  agreement  nnist  be  carried  into  execu- 
tion {d). — But  an  agreement  for  a  lease  with  a  covenant  for  j)erpctual 

(";  in  Kast,  80.  (i)   15  Ea'-t,,030'.  /<•)  Ibid 

'{]  IS  Vcs  J,  (Ti. 


Sect.  IF.]  Of  express  Covenanls.  267 

renewal  at  a  fixed  rent,  of  chiirclj  lands,  nnewahlc  upon  fmrs  continu- 
ally incrcaeini;,  wat  ilecri-cd  to  be  tltlivcrtd  upon  t!ie  ground  of  sur- 
prise, ncillur  party  iMuUrflanilin:^;  the  cITcct  of  it  (a). 

Condition  tu  n-(  nt(  r  on  non'piUfinint  of  Unit.  —  A  condition  tliat,  if 
the  rent  he  l)ehind  by  the  space  of  any  given  time  after  the  day  pre- 
scribed for  payment,  tlic  lessor  shall  re-enter,  is  good  ;  and  such  condi- 
tion is  not  saved  by  tJie  attendance  of  tlie  lessee  wilh  the  rent  monly 
on  the  first  day  of  j)ayment,  for  if  the  lessor  be  not  then  there  to  receive 
it,  the  lessee  must  equally  attend  on  the  last  day  (/v). 

If  a  lease  be  made  rendering  rent,  on  condition,  that  if  the  rent  be 
not  paid  uithin  twenty  days,  the  lessor  shall  re-enter,  and  the  rent 
is  not  paid  ;  in  this  case  the  condition  is  broken  (r),  but  the  lessor 
cannot  enter  until  he  has  made  a  legal  demand  ;  and  if  he  die  before 
he  do  it,  his  heir  siiall  never  take  advantage  of  that  breach,  but  is  dis- 
charged for  ever  {d). 

Nobody  can  have  the  re-entry  but  he  who  should  iiavc  the  rent 
T\cre  there  no  lease  ;  and  so  is  the  very  text  oi  Lit  (let  on,  Co.  Lit.  213.  s, 
'.yUj,  M7.  by  construction  therefore  it  must  be  so.  As  to  demand,  a 
clause  of  re-entry  is  required  (in  the  principle  case,  which  was  a  le^sc 
under  a  power)  as  a  security  for  rent  ;  demand  is  requisite  both  by 
connuon  law  and  statwte  ;  a  clause  of  re-entry  will  never  be  allowed  to 
operate  further  than  as  a  security  for  rent  (r). 

As  to  demand  of  rent  before  re-entering  for  non-payment,  on  an 
objection  being  taken  for  the  omission  thereof,  (respecting  which  it 
became  unnecessary  for  the  court  to  give  any  opinion)  these  authori- 
ties  were  mentioned  (/)•  :  Co.  Lit.  201.  0.  1.  A'o/.  ylOr.  4.3'J.  /;/. 
1,2,  G,  5  Co.  40.  7  Co.  t>3.  b.  L'rccm.  2i>.  2  Ld.  Raijm.  /oO.  and 
J  Sail:.  2.V.). 

A  material  difference  subsists  between  a  remedy  by  rc«entry  and  a 
remedy  by  distress,  for  the  non-payment  of  rent.  Where  the  remedy 
is  l)y  way  of  re-entry  for  non-payment,  an  actual  demand  must  be 
made  previous  to  the  entry,  otherwise  it  is  tortious,  and  trespass 
would  lie,  because  a  condition  of  re-entry  is  in  derogation  of  the 
grant,  and  the  estate  at  law,  being  once  defeated,  is  not  to  be  re- 
stored by  any  subsequent  jjayment :  but  a  notice  of  distress  is  of  itself 
a  demand  (g'). 

But  where  the  power  of  re-entry  is  given  to  the  lessor  for  non-pay- 
ment without  any  further  demand,  there  it  seems  that  the  lessee  ha.^ 
undertaken  to  pay  it,  wlicther  it  be  demanded  or  not,  and  no  pre- 
sumption in  his  favour  can  arise  in  this  case,  because,  l)y  dispensing 
uith  the  demand,  he  has  j)ut  himself  under  the  necessity  o(  making 
an  actual  proof  that  he  was  ready  to  tender  and  pay  the  rent.     It 

la)  16  \e%    J.  72.  (6;  B«c.  on  LcasC!,  ??•  <■■■   !MJ,  (if    ,•■    l"    W     *"' . 

{«;  tofTt'ji  fl    lia  (/;  G  T.  R.  t^-  ,     -.»-^    Tni-S,  I5».  r. 


268  Of  express  Covenants.  [Chap.  X. 

would,  however,  be  advisa!)le  for  the  lessor  even  in  this  case  to 
demand  I  he  rent,  as  the  payment  should  he  on  the  land,  provided  no 
place  is  fixed  for  the  purpose,  and  a  tenant  may  l)e  prepared  to 
prove  that  he  was  on  the  land  the  day  the  rent  became  due,  ready 
to  pay  (,'). 

M.  .  to  the  necessity  of  a  demand  of  the  rent,  there  is  a  dif- 
ference bctwen  a  condition  and  a  liniilation  ;  for  instance,  if  a 
tenant  for  life,  (as  the  case  was  by  marriage  settlement,  with 
power  to  make  leases  for  twenty-one  years,  so  long  as  the  lessee, 
his  executors,  or  assigns  shall  duly  pay  the  rent  reserved)  makes  a 
lease  pursuant  to  the  power,  the  tenant  is  at  his  peril  obliged  to  pay 
the  rent  -vvilhout  any  demand  of  the  lessor  ;  because  the  estate  is 
limited  to  contmue  only  so  long  as  the  rent  is  paid  ;  and  therefore,  for 
the  nori-perfol'raance  according  tothe  limitation,  the  estate  must  deter- 
mine :  a  demand  however  had  better  be  made,  for  the  reason  before 
stated  [■'). 

If  a  place  be  limited  and  agreed  on  by  the  parties  where  the  condi- 
tion is  to  be  performed,  the  party  who  is  to  perform  it  is  not  obliged 
to  seek  the  party  to  whom  it  is  payable  elsewhere  ;  nor  is  he  to 
whom  it  is  to  be  performed  obliged  to  accept  of  the  performance 
elsewhere  ;  but  he  may  accept  it  in  another  place,  and  it  will  be 
good  {r). 

Rent  reserved  payable  yearly  is  to  be  paid  on  the  land  ;  because  the 
land  is  the  debtor,  and  that  is  the  place  of  demand  appointed  by  law. 
So  if  a  man  leases  rendering  rent,  and  the  lessee  binds  himself  in  a  sura 
to  perform  the  covenants  ;  this  does  not  alter  the  place  of  payment  of 
the  rent  ;  for  it  may  be  tendered  on  the  land  without  seeking  the 
obligee  :  except  where  the  condition  is  for  the  performance  of  homage 
or  other  corporeal  service  to  the  person  of  the  lord  {([). 

The  lessee  of  the  King  must  pay  his  rent,  without  demand,  at  the 
Exchequer,  wherever  it  may  be  ;  but  if  the  King  grant  the  land  in  re- 
version, the  rent  must  be  demanded  on  the  land,  before  the  patentee 
can  enter  as  for  a  forfeiture  on  non-payment  (r). 

As  to  the  Irndlord's  right  of  re-entry  being  waived,  if  a  lessor  re- 
ceive rent-arrear  by  an  act  aflirming  the  lessee's  possession,  it  bars  his 
right  of  re-entry  for  non-payment  on  the  day  it  was  due  (/). 

Thus,  in  an  action  of  ejectment,  the  case  was,  a  prebend  let  land 
for  years  rendering  rent,  and  a  re-entry  for  non-payment.  The  rent 
was  demanded  and  was  not  paid,  and  two  days  afterwards  the  lessor 
received  the  rent  of  him  and  made  him  an  acquittance  by  the  name  of 
his  fermor.  Whether  this  receipt  barred  him  or  not  of  his  re-entry  ? 
was  the  question.     It  was  clearly  resolved  that  the  bare  receipt  of  the 

(a)  nac.  Abr.  tit.  "  Conditioss"  [O.  2]  (b)  Ibid.  (e)  Ibid.  [O.  4  J 

Crf;  Hid.  Co.  Lit.  201.  (t)  Cro.  EUz.  462.  (/;  Ibid-  ^ 


^ci'i.  II.]  Of  ixpress  Corcnanls.  il\V.\ 

rent  after  tlic  clay  was  no  har,  fir  il  wia  duty  due  to  liini :  l)ijla  (lis- 
tless for  the  rent,  or  the  receipt  of  rent  due  at  another  day,  was  a  \>.iw 
for  those  acts  afHrni  the  les'ie  to  h:i\  e  lawful  posse'^.-ion :  so  if  he  makes 
him  an  acquittance  with  a  recital  thai  he  is  his  tenant.  In  the  prin- 
pal  Ciisc,  tiic  lessor  callin:;  him  his  fermor,  was  a  full  declaration  of  his 
jneanin^  to  continue  hiiu  liis  tenant,  and  it  was  adjud^jed  that  the  en- 
try was  not  lawful  (n). 

So,  \\  here  a  lease  was  made  to  one  for  iifo  rendering  rent  at  Michael' 
urts,  with  a  clauFC  of  re-entry  for  nun-jjaynjent,  the  n  nt  was  in  arrear, 
and  afteruirds  the  lessor  l)ro(ii;ht  an  action  for  the  rent:  adjiulj;ed, 
tint  notwithstanding:  this  action,  he  (llie  hssor)  mi'^ht  still  ent(!r  for  a 
hrcich  of  tiie  con  lition  :  for  the  action  for  the  rent  did  not  allirm  tjjft 
lease,  because  it  shall  l)C  intended  to  he  l)rouj;htas  for  a  duty  due  upon 
a  contract;  but  if  he  had  distrained  for  the  rent  not  beinp;  piid  at  the 
day,  then  he  can  never  afterwards  enter  for  a  breach  of  tlie  condition, 
because  tiio  distress  aflirms  the  continuance  of  the  lea?c  {//). 

So,  a  gift  was  made  to  the  luisband  and  wife,  ami  to  the  heirs  of 
tlieir  bodies  ;  they  afterwards  made  a  lease  of  the  lands,  reserving  rent 
on  such  a  day,  with  d  clause  of  re-entry  :  then  the  husband  died,  and 
the  rent  being  in  arrear,  the  issue  in  tiil  accepted  it  ;  adjudged  that 
this  wasno  alhrmance  of  the  lease  as  to  hini'^clf,  because  the  rent  was 
not  due  to  him  whilst  his  mother  was  living,  but  it  had  been  otherwise, 
ifhcliad  accepted  it  after  her  death  (f). 

It  is  indeed  a  ndc,  tiiatthc  mere  acceptance  of  rent  shall  not  operate 
as  a  waiver  of  a  forfeiture,  or  as  a  coniirmation  of  the  tenancy,  unless 
the  landlord  liad  notice  that  a  forfeiture  was  incurred  at  llje  tinie  or 
did  some  other  act  indicating  his  intention  to  continue  the  lessee  in 
his  term  (</) :  and  such  acceptance  is  mUter  of  evidence  only  iis  to  the 
(juo  a/iiino,  to  be  left  to  Ihc  jury  untler  the  circumstances  of  tlie 
case  (r). 

Touching  conditions  of  re-entry  for  non-payment  of  rent  or  the 
breach  of  any  other  covenant,  the  law  upon  that  sul)jcct  is  so  well  di- 
gested in  Mr.  Serjeant  /r/7//Vf;/:v' c.vccllenl  eilition  o[ Sntniders'  Jicporls, 
that  his  note  containing  it  may  well  be  here  introduced. 

Where  a  condition  of  re-entry  is  reserved  for  non-payment  of  rent, 
several  things  are  reijuired  by  the  common  law  to  be  previously  tlone 
by  the  reversioner,  to  entitle  him  to  re-enter  (  /').  1.  A  ileuiand  must  be 
made  of  the  rent:  [and  where  there  are  .several  rlemi>^es  at  distinct  rents, 
separate  demands  must  be  made  for  each,  though  they  be  both  reserv- 
ed in  the  same  lease,  rauy/i.  71.]  2.  The  demand  Juiisl  be  of  the  pre- 
cise rent  due  ;  for  if  a  penny  more  or  less  be  demanded,  it  will  l)c  iU. 

(a)  Tro.  Eliz    tC'J-  (6)  3  S«!k.  S.  '    ^  T.  K  O*- 

tr^  CoAn  n-'.  I   •)  ISauiU.l'jr.  n  :6 

30 


:270  Of  express  Covenants.  [Chap.  X. 

[And  what  remains  payable,  after  llic  land-lax,   or  a  ground-rent  de- 
manded of  and  paid  by  the  tenant,  or  any  other  part  of  tiie  rent  agreed 
upon,  lias  been  lawfully  deducted  by  the  tenant,  \\U\    of  course  consti- 
tute the  rent  due,  4  7'.  7i'.  oil.]  3.  It  must   lie   made  precisely  upon 
the  day  on  u  hich  the  rent  is  due  and  payable  by  the  lease  to  save  the 
forfeiture:  as  uhcre  the  proviso  is,  "  that  if  the  rent  shall  l)e  behind 
and  unpaid  by  the  space  of  thirty  or  any  other  number  of  days,  after 
the  days  of  payment,  it  shall  be  lawful  for  the  Icijsor  to.  re-enter,"  a 
demand  nuist  be  made  on  the  thirtieth  or  other  last  day.  4.  It  must  be 
made  a  convenient  time  before  sun-set.     5.  It  must  be  made  upon  the 
land,  and  at  the  most  notorious  place  of  it.     Therefore  if  there  be  a 
dweiling-house  upon  the  land,  the  demand  must  beat  the  front  or  fore- 
door;  though  it  is  not  necessary  to  enter  the  house,  notwithstanding 
the  door  be  open.     But  if  the  tenant  meet  tlie  lessor  either  on  or  off 
the  land  at  any  time  of  the  last  day  of  payment,  and  tender  the  rent, 
it  is  suthcient  to  save  a  forfeiture,  for  the  law  leans  against  forfeitures. 
C.  Unless  a  place  be  appointed  where  the  rent  is  payal)le  ;  in  which 
case  a  demand  must  be  made  at  such  place.  7.  A  demand  of  rent  must 
be  made  in  fact,  and  so  averred  in  pleading,  although  there  should  be 
no  person  on  the  land  ready  to  pay  it.    8.  If  after  these  requisites  have 
been  performed  by  the  reversioner,  the  tenant  neglects  or  refuses  to  pay 
the  rent,  then  the  reversioner  is  entitled  tore-enter:  [for  if  the  lessor 
or  his  sufjicient  attorney  remain  upon  the  land  the  last  day  on  which 
the  rent  ought  to  be  paid,  until  it  be  so  dark  that  he  cannot  see  to  tell 
the  money,  and  the  money  thus  demanded  be  not  paid,  this  is  a  denial 
in  law,  though  there  be  no  words  of  denial ;  upon  which  a  re-entry  may 
be  made.     1  lust.  201.  4  Rep.  73.]     However,  it  is  to  be  observed, 
that  no  actual  entry  is  necessary  to  be  made  by  him  into  the  land,  Imt 
it  is  sufiicient  to  bring  an  ejectment  onl}' :  though  it  was  held  oilier- 
wise  until  Lord  Unless  time,  when  it  was  decided  that  the  entry  confes- 
sed by  the  defendant  in  the  ejectment,  was  sufiicient  without  any  actual 
entry;  which  decision  has  been  adhered  to  ever  since. — It  follows,  as  ai 
necessary  inference  from  what  has  been  premised,  that  a  demand  made 
after  or  before  the  last  day  on  which  the  lessee  has  to  pay  the  rent,  in 
order  to  prevent  a  forfeiture,  or  oif  the  land,  will  not    be   sufficient  to 
defeat  the  estate.     But  now  to  obviate  these  niceties  in  some  cases  the 
stat.  4  6^.2.  c.  28.  (of  which  hereafter,)  prescribes  a  particular  mode 
of  proceeding  in  cases  of  premises  left  vacant  and  a  half  year's  rent  be- 
ing due,  but  no  sufficient  distress  being  thereon  [a). 

The  same  requisites  which  are  deemed  necessary  in  order  tp  entitle 
the  lessor  to  re-enter,  are  also  necessary  in  order  to  eRtitle  him  to  re- 
cover a  nomine  pocnie,  as  it  is  called,  w  hich  is  not  considered  so  much  as 

<aj  1  Saund.CG7.D.  16: 


Seel.   II.]  Of  express  Corrnanls.  i»7l 

a  remedy  for  Ihe  recovery  of  Ihc  rent,  us  a  piii.ilty  to  ol)lli;c  tlic  tenant 
to  ;i  punctual  j>a\  nicnt  of  it ;  and  Ikiw.;  so  inniuilialcly  connocfcd  willi 
thesui)jcct  of  tliis  cliaptcr,  we  have  thought  proper  to  notice  it  in  thi.s 
part  of  the  work.  A  nomine  pocmv  bcini;  so  considcrctl,  tliereforc  where 
a  proviso  is,  that  if  the  rent  be  in  arrear  for  tiic  space  of  tl)irty  days, 
next  after  the  days  of  payment,  the  lessee  sliail  forfi-it  ten  shiMings  a 
day  by  way  of  j)enalty,  in  that  case  in  order  t<)  enlifle  t!ic  h'Mor  to  re- 
cover the  penalty,  there  must  be  a  denjand  of  tiu:  rent  in  like  mainj'  r 
in  every  respect,  as  we  have  before  seen  is  required  in  cases  of  re-entry 
for  nnn-paymenl  of  rent. — A  distinction  is  taken  Iietueen  a  power  to  re- 
enter, or  a  nomine  poena,  and  a  power  of  di.'-train  :  as  where  a  rent  is 
granted  payable,  Js-e.  and  in  default  of  payn)f'nl  if  it  be  demanded,  the 
grantee  may  distrain :  in  this  case,  it  is  held  not  to  l)c  necessary  to  make 
a  demand  on  the  day,  as  in  the  case  of  re-entry,  or  a  nomine poimt,  but 
lie  may  demand  the  rent  at  any  time  after  {a). 

In  cases  of  conditions  of  re-entry  there  is  a  dificrr  ncc  betuecn  leases 
for  lives  and  leases  for  ijenrs  ;  and  wi'. h  resj)ecl  to  Ijic  latter,  there  is 
also  a  difterence  between  ihcm,  which  arises  entirely  from  the  manner  in 
which  tlic  condition  of  re-entry  is  expressed  in  the  lease  (A). 

As  tu  leases  for  lives,  it  is  held  that  if  the  tenant  ncq,lect  or  refuse  to 
pay  his  rent  after  a  regular  demand,  or  is  guilty  of  any  other  breach  of 
the  condition  of  re-entry,  the  lcaj;c  is  only  voidable,  and  therefore  not 
determined  until  the  lessor  re-enters,  that  i;',  brings  an  ejectment  for 
the  forfeiture  :  and  this,  though  tlic  clause  of  the  condition  should  lie, 
that  for  non-payment  of  the  rent,  or  tiie  like,  the  lease  shall  cease  and 
be  void  (r)  :  for  it  is  a  rale,  that  where  an  estate  coiHnienccs  by  livery, 
it  cannot  be  determined  before  entry  ;  therefore  if  the  lessor,  aflcrnn- 
ticc  of  the  forfeiture,  which  is  a  material  and  issuable  fact,  accept  rent 
which  accrued  due  after,  or  does  any  other  art  which  amounts  to  a 
dispensation  of  the  forfeiture  (as  bringing  covenant  for  half  a  year's 
rent,  6ul)scquent  to  the  time  of  the  demise  land  in  an  ej'Ttment  for 
the  forfeiture  ;)  the  lease  which  was  before  voitlable,  is  thereby  af- 
firmed {(I). 

Inii  if  there  be  a  lease  for  years,  witli  a  condition,  that  for  non-pny- 
Bient  of  the  rent  or  the  like,  the  lease  shall  be  null  and  void,  in  such 
case  if  the  lessor  makes  a  legal  dcmnnd  of  the  rent,  and  the  lessee  neg- 
lects or  refuses  to  pay,  or  if  the  lessee  is  cnilty  of  any  olhtr  breach  of 
the  condition  of  re-entry,  the  lease  is  al)solutely  determined,  and  can- 
not be  set  up  again  by  acceptance  of  rent  due  after  the  breach  of  the 
condition,  or  by  any  other  act.— Vet  if  in  such  lease  the  clause  l)C,  that 
for  non-payment  of  the  rent  il  should  be  lawful  f)r  the  lessor  to  re-enter, 
the  lease  is  only  voidable,  and  may  be  aUirracd  by  acceptance  of  rent 

(a)  J.SajnJ.  287.  n.  16.  (t)  Ibi.1.  (c)  lUA  (<«;3-jr   N.  P.  ?8. 


272  Of  express  Covenants,  [Chap.  X. 

accrued  after,  or  other  act,  if  the  lessor  had  notice  of  the  breach  of 
the  condition  at  the  time  {a). 

Ptcgularly,  when  any  man  will  take  advantage  of  a  condition,  if  he 
niav  enter,  he  must  enter,  and  w  hen  he  cannot  enter  he  must  make  a 
claim  ;  and  the  reason  is,  that  a  freehold  atid  inheritance  shall  not  cease 
without  entry  or  claim  (b),  and  also  the  grantor  may  waive  the  condi- 
tion at  his  pleasure. — It  is  also  to  be  observed  that  an  entry  upon  an 
estate  generally,  is  an  entry  for  the  whole;  and  if  it  be  for  less,  it 
should  be  so  defined  at  the  time  (r). 

It  is  laid  down  for  a  rule,  generally,  that  he  who  enters  for  a  condi- 
tion broken  shall  be  seised  in  his  first  estate,  or  of  that  estate  which  he 
had  at  the  time  of  the  estate  made  upon  condition,  and  therefore  shall 
avoid  all  mesne  charges  and  incumbrances  ((/). 

Generally  as  to  covenants,  touching  tlie  operation  of  an  Act  of  Par- 
liament in  respect  to  them,  where  the  question  is,  whether  a  covenant 
be  repealed  by  an  Act  of  Parliament,  this  is  the  difference;  viz.  where 
one  covenants  not  to  do  an  act  or  thing  which  it  was  lawful  to  do, 
and  an  Act  of  Parliament  comes  afterwards  and  compels  him  to  do  it, 
the  statute  repeals  the  covenant  :  so,  if  one  covenants  to  do  a  thing 
which  is  lawful,  and  an  Act  of  Parliament  comes  in  and  hinders  him 
from  doing  it,  the  covenant  is  repealed  ;  but  if  a  man  covenants  not  to 
do  a  thing  which  at  the  time  was  unlawful,  and  an  Act  comes  and 
makes  it  lawful  to  do  it,  such  Act  of  Parliament  does  not  repeal  the 
covenant  (/). 

Though  all  the  rent  of  the  lessee  is  assigned  by  Act  of  Parliament,  if 
there  arc  no  words  of  discharge  the  lessee's  executor  is  still  liable  to 
covenant  fur  the  rent  (f). 

Where  by  an  order,  confirmed  by  Act  of  Parliament,  that  an  inden- 
ture of  lease,  upon  which  rent  was  reserved,  should  be  vacated  and 
cancelled,  and  that  a  stranger  should  enter  into  the  demised  lands,  and 
receive  the  profits ;  the  same  rent  in  value,  granted  by  the  lessee  for 
the  better  securing  of  the  rent  reserved,  is  not  discharged,  though  the 
intention  appears  that  they  should  be  but  one  rent  paid  (§). 

It  has  however  been  held  that  if  a  man  covenant  to  do  a  thing,  and 
it  is  afterwards  prohibited,  yet  the  covenant  is  binding  ;  for  that  a 
penal  statute  cannot  liave  a  retrospective  operation  (//). 

There  is  a  dilierence  between  covenants  in  general,  and  covenants 
secured  by  a  penalty  or  forfeiture  (/).  In  the  latter  case,  the  obligee 
has  his  election  ;  he  may  either  bring  an  action  of  debt  for  the  penalty^ 

(a)  Paund.  ut    ante.  (b)  Co.  Lit.  218.  ic)  3  T.  R.  170. 

(c/)  Co.  Lit.  i02.  Bac.  Abr.  tit.  "  Conditions."  [O.l.] 

(t)  1  Salk.  I'ji).  vide  post.  257.  (f)  Uac.  Ahr.  tit.  "Covenant."  [E. -1.  n.] 

(S)  I  Saund.  I'OO,  201.  (A)  3  .Mod.  SO. 

(i)  4  Bun.  2J2(}.    Uoujj.  49.  101.     )  S"aund.  03.  n.  1- 


Sect.  II.]  Of  express  Covenants.  2TA 

after  the  recovery  of  which  he  cannot  resort  to  the  covenant,  because 
the  penalty  is  to  go  in  Siitisfactioii  for  the  whole  :  or  if  he  (Iocs  not 
choose  to  go  for  the  petially,  he  may  proceed  upon  the  covenant,  and 
recover  more  or  k-ss  than  tiic  penalty,  tolirs  '/uofics  (m). 

Upon  tliis  distinction  tliey  proceed  in  courts  of  erpilly  ;  they  will  re- 
lieve again<t  a  penalty,  upon  a  conipcnsation  ;  hut  uhrre  the  covenant 
is»<  to  pay  a  partionldr  h'quidattdsuni,"  a  court  of e<|uity  cannot  make 
a  new  covenant  for  a  man,  nor  is  tlare  any  room  for  compensation  or 
relief  {/>). 

Thus  in  leases  containing  a  covenarjt  against  plougliing  tip  meadow  ; 
if  the  covenant  he  "  not  to  plough,"  and  liierc  be  a  \)onalty,  a  court  of 
equity  will  relieve  against  the  penalty;  and  will  even  go  further  than 
that  to  preserve  the  substance  of  thea,z;rcement  (r).  Hut  if  it  is  worded 
"  to  pay  51.  an  acre  for  every  acre  ploughed  up,"  th' re  is  no  alternative, 
no  room  for  any  relief  against  it,  no  compensation  ;  it  is  the  substance 
of  the  a.;recmcnt,  it  is  the  particular  liquidated  sum  fixed  and  agreed 
upon  between  the  parties,  and  is  therefore  the  proper  tjuanlum  of  the 
damages  (J). 

Indeed,  nothing  can  be  more  obvious,  than  that  a  person  may  >(  t  an 
extraordinary  value  upon  a  particular  piece  of  land  or  wooil,  on  account 
of  the  amusement  which  it  may  allord  him.  In  this  country  a  man 
has  a  right  to  secure  to  himself  a  property  in  his  amusements  :  and  if 
he  choose  to  stipulate  for  o/.  or  .30/.  aihlitional  rent  upon  every  acre  of 
furze  brolun  up,  or  for  any  given  sum  of  money  upon  every  load  of 
wood  cut  and  stubbed  up,  there  seems  nothing  irrational  in  such  a  con- 
tract (  ). 

The  court  of  chancery  will  relieve  ai^ainst  forfeiture  under  a  covenant 
for  non-payment  of  rent :  but  not  where  the  recovery  in  ejectment  was 
also  upon  breach  of  other  covenants  ( /"). 

Efjuity  will  likewise  relieve  aj^ainst  a  forfeiture  incurred  by  breach 
of  a  covenant  to  layout  aspccific  sum  in  repairs  iu  a  given  time  (;,"). 

\\'here  articles  contain  covenants  for  the  performance  of  several 
things,  and  then  one  large  sum  is  stated  at  the  end  to  be  paid  upon 
breach  of  performance,  that  must  be  considered  ai  a  penalty.  But 
where  it  is  agreed  that  if  a  party  do  such  a  particular  thing  such  a 
sum  shall  be  paid  l)y  him,  there  the  sum  stated  may  be  trcited  as  liqui- 
dated damages. 

It  is  therefore  clear,  that  w  here  the  precise  sum  is  not  the  essence 
of  the  agreement,  the  quantuvi  of  the  damages  may  be  assessed  by  the 
jury  :  but  where  the  precise  sum  is  fixed  and  agreed  upon  between 

(a)  am.  n.  iim  r.  t   n.  aon.  (6:  s  MoU.  uj.  i  Hht  u-:?. 

(e;  Ibid  (d)  3  AU.  Hi.  ante.    2  JlfO.   P.  C.  «3G.  U)  2  OcK   k  V\i\    3^ 

(f)  10  Ves.  G7.  12  Vw.  4ri.  (r;  12  Vc».  KJ.  but  sec  10  Voi    iOv 


274  Of  express  Covenants,  [Chap.  X, 

the  parties,  that  very  sum  is  the  ascertained  damage  and  tlie  jury  are 
confined  to  it  {a). 

Thus,  Mhere  there  is  a  clause  of  nomine poence  in  a  lease  to  a  tenant 
to  prevent  his  breaking  up  and  ploughing  old  pasture  ground,  the  in- 
tention thereof  being  to  give  the  landlord  some  compensation  for  the 
damage  he  has  sustained  from  the  nature  of  his  land  being  altered,  the 
whole  nomine  poence  shall  be  paid,  and  not  at  the  rate  of  51.  per  cent, 
only  for  the  rent  reserved  (6). 

Where  a  conveyance  of  land  is  void,  so  as  no  estate  passes,  all  de- 
pendent covenants  are  void  also ;  otherwise  of  covenants  indepen- 
dent (r). 

For  a  lease  must  either  be  good  or  bad  in  its  creation.  Therefore, 
■where  it  was  expressly  found,  that  a  covenant  in  a  lease,  under  a  power 
requiring  the  insertion  of  "  usual  covenants,"  was  unusual  ;  the  ques- 
tion Avas,  Whether  that  circumstance  avoided  the  lease  itself,  or  only 
that  particular  covenant :  and  it  was  observed  that  the  party  had  no 
power  to  lease  at  all,  unless  in  the  form  prescribed  ;  which  became  a 
condition  precedent.  It  being  manifest  that  the  lease  was  not  made 
pursuant  to  the  power,  it  was  void  in  his  creation,  and  the  reversioner 
had  a  right  to  take  advantage  {d). 

If  tenant  for  a  term  of  years  lease  for  a  less  term  and  assign  his  re- 
version, and  the  assignee  take  a  conveyance  of  the  fee,  by  %N'hich  his 
former  reversionary  interest  is  merged,  the  covenants  incident  to  that 
reversionary  interest  are  thereby  extinguished  (e), 

(n)  4  Bur.  2229.  (5)  2  Atk.239.  (c)  1  Salk.  W9.  fd)  1  T  R.  709- 

(e)  3  T,  R.  393. 


'Itli 


CHAPTER  XI. 


Of  Assii^nr.mils  and  Uiuhr- Leasts  ; 

Jml  in  n/ifU  cases  Jssi'^nrcs  arc  bound  bi/  Covenants,  m  may  make  advan* 
tagc  of  them  ;  ivkctlur  the  Jssi^nincnt  or  Undcr-Lcnse  be  absolute^  or 
by  nay  of  Mortgage. 

AX  assignment  is  the  transferrins  and  setting  over  to  another  some 
right,  title,  or  interest  in  things,  in  which  a  third  person,  not  a  party  to 
tlic  assignment,  has  a  concern  and  interest  {(i). 

Every  one  tiiercforc  who  lias  an  estate  or  interest  in  lands  an<l  tene- 
ments, may  assign  it  {b)  :  as  tenant  for  life,  for  years,  <^r.  [But  a  te- 
nant at  will,  or  sufferance,  cannot  assign,  it  is  conceived,  for  reasons  be- 
fore ni»-ntioned  (r).] 

So  tlie  interest  or  estate  tliat  a  man  hath  by  extent,  is  assignal)Ic  from 
man  to  man  at  pleasure  (d).  So,  an  annuity  may  be  demised  by  way 
of  assigimient :  and  an  oHicc  in  certain  cases  may  be  as.->i^ncd  (r).  And 
every  one  who  has  a  present  and  certain  estate  or  interest  iji  things 
which  lie  in  grant,  may  assign;  as  in  a  rent,  common,  advowson,  is.c, 
(/).  Though  the  interest  be  future;  As  a  term  for  years  to  com- 
mence infuturo  ;  for  the  interest  is  vested  in  prascnti,  though  it  does 
not  take  eJlcct  till  a  future  time  (r^). 

So  a  possibility  of  a  term  is  assignable  in  equity  for  a  good  considera- 
tion, though  not  so  at  law  :  and  though  the  ci£si.;nment  of  a  contingent 
interest,  whicli  a  husband  has  in  right  of  his  wile,  or  the  possibility  of 
a  t(uni,  is  not  strictly  good  by  way  of  assignment,  yet  it  will  opeiate  as 
an  agreement  where  there  is  a  valuable  cou'^ideration ;  but  it  must  be 
an  assignment  of  that  particular  thing,  and  not  rest  only  in  intention 
and  construction  of  words  in  a  covenant  (/<). 

So,  a  lessee  for  years  of  the  crown  may  assign  his  term,  though  he 
is  ousted  by  a  stranger  (/)  :  for  the  reversion  being  in  the  croxrn  he 
cainiot  be  out  of  possession  but  at  his  pleasure  ;  but  ordinarily  a  lessee 
cannot  assign  his  term  if  an  actual  ouster  had  taken  place,  till  he  re- 
enter (A). 

A  power,  where  it  is  coupled  with  an  interest,  may  be  assigned, 

(n)  llac.  Abr.  tit  "  AssisnmenL"  (t)  Com.  U'n.  til.  •'  AMixnrcect  "  [A  ] 

(c)  J'Ue.  p.  8a.  23C.  (<i;  Sbcp.  T«uc^.  'Ja.                         (t)  Antt.  I U,,  \M. 

(/)  Com.  Uij.  u«  anU.  (f)  Ib.J.                           (*}  »Kod.  lOt    2f.  \Vnj».  (08. 

(ij  tro.  i;itt  275.                        ;»;  IMvJ.  ». 


276  Of  Assignments  and  Under-Leascs.     [Chap.  XI. 

though  a  bare  power  is  not  assignable  ;  therefore  if  a  lease  be  made 
with  an  exception  of  the  trees,  and  a  power  be  reserved  to  the  lessor  to 
enter  and  cut  them  down,  he  may  assign  this  power  to  another  person  ; 
])iit  if  it  be  not  properly  pursued,  the  lessee  may  raantain  trespass  both 
against  the  lessor  and  his  assignee  (a). 

A  lease  Nvas  made  for  years  of  lands  excepting  the  woods  :  the  lessor 
grants  the  trees  to  the  lessee,  and  he  assigns  the  land  over  to  another  ; 
the  trees  do  not  pass  by  this  assignment  to  the  assignee  (/>). 

But  generally  a  chose  in  action,  bare  right,  or  possibility  cannot  l)e 
assigned  ;  and  where  it  is  otherwise  it  arises  from  the  enactment  of 
gome  statute,  or  the  construction  of  a  court  of  equity. 

As  a  rij^ht  is  not  assignable,  if  the  conuzee  of  a  statute  sue  an  extent, 
and  a  liberate  is  returned,  yet  if  he  suffer  the  conuzor  to  keep  possession, 
he  cannot  assign  the  lands ;  for  his  possession  under  the  liberate  is  by 
his  o\wi  entry  turned  to  a  right  (r). 

But  the  king  by  virtue  of  his  prerogative  may  assign  a  chose  in  ac- 
tion, and  the  assignee  may  sue  either  in  his  own  name  or  in  the 
king's  (<^/). 

Yet  if  the  king  grant  a  chose  in  action  to  another,  as  he  may,  his  gran- 
tee cannot  assign  it  to  another  («°). 

A.  a  copyholder  covenants  to  assign  and  surrender  to  B.  which  cove- 
nant is  presented  to  the  homage;  but  before  any  surrender  B.  assigns 
his  interest  to  C.  to  whom  A.  surrenders;  C.  has  a  right  to  be  admitted 
on  payment  of  a  fine  for  his  own  admittance  only  :  for  all  the  lord  has 
a  right  to  require  is  to  have  a  tenant,  and  a  private  agreement  like  this, 
not  followed  up  by  a  surrender  of  the  estate,  cannot  give  the  lord  of 
the  nianor  a  right  to  any  fine  (/). 

If  a  termor  for  years  make  a  lease  for  a  time  exceeding  his  interest, 
it  shall  operate  as  an  assignment  {g). 

An  assignment,  as  contradistinguished  from  an  underlease,  signifies  a 
parting  with  the  w^hole  term  {h)  ;  and  when  the  whole  term  is  made 
over  by  the  lessee,  although  in  the  deed  by  which  that  is  done,  the  rent, 
and  a  power  of  re-entry  for  non-payment,  are  reserved  to  him,  and  not 
to  the  original  lessor,  yet  this  is  an  assignment  and  not  an  under-lease  ; 
and  in  such  case,  the  original  lessor  or  his  assignee  of  the  reversion, 
may  sue  or  be  sued  on  the  respective  covenants  in  the  original  lease, 
even  though  new  covenants  are  introduced  in  the  assignment  (/}. 

So,  if  a  lessee  for  three  years  assign  his  term  for  four  years,  or  de- 
mises the  premises  for  four  years,  he  does  not  thereby  gain  any  tortious 
reversion,  but  it  amounts  to  an  assignment  of  his  interest  (/r). 

An  assignment  is  usually  made  by  the  words  "  grant,  assign,  and  set 

(n)  2  Mod.  317.  (h)  Codb.  180.  (c)  l  Mo.l.  .18.  (d)  Cro.  Jac.  180. 

^:)  It'i'l.  (/)2T.  n   484.  (g)  1  Ld.  Kaym.OS.  (h)  1  ^tr.  4t)5, 

^r)  .S;J  -cidt  Dojg..  Vil.  n  f  5'J.  (t}  I  I  0.  Ray ro.  2?. 


Cliap.  XI.]       Of  Assigmmnts  and  L'mkr- Leases.  277 

over;"  hut  no  |);ir(iciilar  cxi)rcssions  arc  m cissary  for  flir  purpose, 
provided  the  iiitinlioii  of  llic  parlicH  is  Miliicitntly  cxpliiincd. 

No  coiiBideration  need  be  expressed  in  an  afsignment,  for  the  assig- 
nccs  bting  subject  to  the  p.iymciit  of  the  rent  rcscrve^l  by  the  lease, 
is  h»:ld  to  be  a  siitficitnt  col)^i(!eration  (^/). 

An  assiL,'nmeiit  must,  by  llie  statute  (//)  of  Frauds,  be  in  wriling  j 
the  statute  enacts,  that  no  lease?,  estates,  or  interests,  either  of  freehold 
or  teruis  of  years,  or  any  uncertain  interest,  (not  being  copyhold  or 
customary  interest,)  of,  in,  to,  or  out  of  any  messuages,  manors,  lands, 
tenements,  or  hereditaments,  shall  be  assigned,  granted,  or  surrendered, 
unless  it  be  by  deed  or  note  in  writing,  signed  by  the  party  so  assign- 
ing, granting,  or  surrendering;  the  same,  or  their  agents  thereunto  law- 
fully autliorized  by  writing,  or  by  act  and  operation  of  law. 

A  parol  assignment  of  a  lease  from  year  to  year,  granted  by  parol, 
is  void  under  tJie  Stat,  of  Frauds  (r). 

An  assignee  of  lease,  to  shew  his  interest  in  the  premises  is  hound  to 
prove  the  execution  of  the  lease,  and  all  mesne  assignments  (r/). 

If  a  trader  before  bankruptcy  deposits  a  lease  as  a  security  for  money, 
but  no  mortgai^e  or  ^signmcnt  of  it  then  takes  place,  the  as>i^necs 
may  recover  it :  it  conferring  no  legal  title  (r). 

The  j)arty  assigning  is  called  the  assignor,  and  he  to  whom  the 
assignment  is  made,  the  assignee. 

The  proper  covenants  on  the  part  of  the  assignor,  arc,  tli;it.  the  in- 
denture of  lease  is  good  in  law  ;  that  he  has  power  to  assign  ;  for  quiet 
enjoyment;  and  for  further  assurance. 

The  proper  covenants  on  the  part  of  the  assignee  are  that  he  will  pay 
the  rent,  or  perform  the  services,  as  the  case  may  be  ;  ami  also  perform 
the  covenants  contained  in  the  indenture  of  lease,  or  save  harmless  the 
assignor  therefrom. 

Assignees  are  in  fact,  or  in  law. — Under  tlic  word  "  assigns,'*  the 
assignee  of  an  assignee  hi  prrpctuinn,  the  heir  of  an  assignee,  or  assignee 
of  an  heir  shall  take.  So,  if  a  man  covenant  with  another,  "  his  cjti- 
cutors  and  assigns,"  the  assignee  of  an  assignee,  and  his  executors,  and 
the  assignee  of  an  executor  or  administrator  of  every  assignee,  arc  in- 
cluded and  shall  have  covenant  (/). 

It  seems  that  an  action  w  ill  not  lie  by  an  assignor  against  ^n  assignee, 
for  he  has  no  residuary  interest  {g). 

In  leasrs,  the  lessee  being  a  j)arty  to  tiu':  original  contract,  «-ontiDue^ 
always  liable,  notwithstanding  any  assignment  (A). 

Therefore  covenant  will  lie  against  a  lessee  for  years  on  an  express 

(n)  Koy.  >r»x.  93.    1  Moi  2C3.    3  Mod.  2X.  (t)  «  C»r.  J.  e.  3. 

(c)  1  C»rapK.3)8.  (<i)  II.M.30X  ''.>■«"  19j 

if)  Conn.  Dig.  tit.  *♦  Assignmrnf  (B  J  Co.  Lit.  :»i.  b 

8r 


278  Of  Assignments  and  XJnder-Leases.      [Cliap.  XI. 

r.ovenaiil,  as  to  repair,  pay  rent,  8rc,  notwilhstanding  he  has  assigned 
his  term  and  the  lessor  has  accepted  rent  honi  the  assignee. — But  an 
action  of  debt  Avill  not  lie  after  acceptance  of  rent  (a). 

So,  the  executor  of  a  lessee  is  liable  to  the  grantee  of  the  reversion 
on  such  covenants ;  though  the  lessee  may  have  assigned  his  terra  and 
the  grantee  have  accepted  rent  of  the  assignee  (Jj). 

For  no  assignment  nor  acceptance  of  the  rent  by  the  hands  of  the 
assignee  shall  take  from  him  the  advantage  of  suing  him  or  his  execu- 
tors upon  an  express  covenant ;  no  more  than  if  a  lessee  had  obliged 
himself  in  an  obligation  to  pay  his  rent,  his  assignment  over  of  his 
term,  and  the  acceptance  of  the  rent  by  the  lessor  of  the  assignee,  shall 
not  take  from  him  the  advantage  of  the  obligation  (r). 

For  the  personal  representative  of  a  lessee  for  years  is  his  assignee, 
and  a  covenant  to  repair  runs  with  the  land,  as  it  is  to  be  performed  on 
it,  and  therefore  binds  the  assignee  {d).  So  with  respect  to  a  covenant 
to  make  further  assurance  {e). 

So,  if  there  is  a  covenant  which  runs  with  the  land,  and  the  lessee 
assigns  over,  and  the  assignee  dies  intestate,  the  lessor  may  have  cove- 
nant against  the  administrator  of  the  assignee  and^declare  against  him 
as  assignee  ;  for  such  covenants  bind  those  who  come  in  by  act  of  law, 
as  well  as  by  act  of  the  parties  (/). 

Though  all  the  estate  of  the  lessee  is  assigned  by  Act  of  Parliament, 
if  there  are  no  words  of  discharge  the  lessee's  executor  is  still  liable  to 
covenant  for  the  rent  {g). 

Where  there  is  a  bond  for  the  performance  of  the  covenants  in  a  lease, 
if  the  lessee  assigns  the  lease,  he  may  likewise  assign  the  bond  :  but  this 
must  be  before  any  of  the  covenants  are  broken ;  for  if  any  of  the  co- 
venants are  broken,  and  the  lessee  afterwards  assigns  the  lease  and 
bond,  and  the  assignee  puts  the  bond  in  suit  for  those  breaches,  it  has 
been  held  to  be  maintenance  {h). 

An  assignee  must  take  the  thing  assigned,  subject  to  all  the  equity 
to  which  the  original  party  was  subject  (/). 

The  assignee  of  a  term  is  bound,  therefore,  to  perform  all  the  cove- 
nants which  are  annexed  to  the  estate  ;  for  when  a  covenant  relates  to 
and  is  to  operate  on  a  thing  in  being,  parcel  of  the  demise,  the  thing 
to  be  done  by  force  of  the  covenant  is,  as  it  were,  annexed  to  the  thing 
demised,  and  shall  go  w  ith  the  land,  and  bind  the  assignee  in  the  per- 
formance, though  net  named  :  for  the  assignee,  by  the  acceptance  of  the 
possession  of  the  land,  makes  himself  subject  to  all  the  covenants  that 
run  w  ith  the  land,  of  which  repairing  is  one,  building  another,  to  pay 

(a)  Cro.  Jac.  309.  Cro.  Car.  579.  4  Mod.  8J.  3  Salk.  48-  Cro.  Jac.  334. 

(h)  J  Mod.  88.  Cro.  Jac.  522.  3  Salk.  5.  (c)  Cro.  Car.  1S8. 

{d-)  1  I.d   Raym.  553.  (e)  Cro.  Car.  503.  (f)  ERp.  K.  P.  290. 

(g)  Bac.  Abr.  lit.  "Coveoant."  [E.  4.  n  J  (h)  Godb.  8!.  (0  Doug.  63C. 


Chap.  XI.]     Of  J6sii:;nmcnls  ami  Under- Lrasrs.  279 

rent  a  lliird,  .Vr.  aiul  to  such  he  is  bound  without  l)cin^  named  by  the 
special  wofil  "  a.ssiL;i)s"  (a). 

So,  w  in  re  there  was  a  covenant  to  use  the  land  in  a  ]ius!)andnian- 
like  manner,  and  leave  it  in  like  condition,  it  wits  helil  to  be  s..cli  a  c > 
vcnant  as  ran  with  the  land,  and  tliat  tlie  executor  of  the  landlord 
nii^ht  sue  on  it  (/»). 

The  assii^nee,  however,  is  liable  only  in  respect  of  his  |>opse«;sion  of 
the  tiling  ;  he  bsars  the  burthen  while  he  enjoys  the  benefit,  and  no 
lon:j;(T ;  and  if  tlie  whole  is  not  paj-.-eil,  if  a  day  only  is  reserved,  he  is 
not  lial>le  (r). 

IJut  under  an  absolute  assii^nment  of  a  term  tlie  assignee  nn\  be  sued 
on  the  covenants  before  he  has  taken  actual  possession :  for  by  the  as- 
signment the  title  «and  possessory  rijjht  nu'ght  pass  and  the  assignee  be- 
come possessed  in  law  ;  and  as  to  the  actual  possession,  that  must  de- 
pend on  the  nutureof  the  property  uhether  it  can  take  place  ;  thus  the 
premises  nuglit  be  w  aste  or  unprofitable  ground,  or  ground  ijiteniled  to 
build  upon  (/). 

So,  a  mort^at^e,  though  not  in  possession,  is  liable  to  perform  the 
covenants  in  the  lease:  for  a  luortgagcc  is  liable  not  on  the  score  of 
possession,  but  as  assignee  ;  and  liis  liability  is  not  limited  by  his  pos- 
session, but  continues  as  long  as  he  has  the  legal  estate,  lie  shoulJ 
have  taken  an  under-lease  {c). 

As  to  the  extent  to  which  the  lessee  or  assignee  is  liable  in  covenant, 
there  is  a  considera!)le  diflerence. 

1.  The  lessee  has,  from  his  covenant,  both  a  privity  of  contract  and 
of  estate  :  and  though  he  assigns,  and  thereby  destroys  the  privity  of  es- 
tate, yet  the  privity  of  contract  continues,  and  he  is  liable  in  covenant 
notwithffanding  the  assignment  (/). 

2.  But  the  assignee  comes  in  only  in  privity  of  estate,  and  therefore 
is  liable  only  while  he  continues  to  be  legal  assignee;  that  is,  while  in 
possession  under  the  assignment :  except,  indeed,  in  the  case  of  rent,  fm 
which,  though  he  assign  over,  he  is  notwithstanding  liable  ;u;  to  the 
arrears  incurred  before,  as  well  as  during  his  enjoyment ;  and  such  as- 
signee was  made  liable  in  equity,  though  the  privity  of  estate  was  de- 
stroyed at  conuuon  law  (e). 

If  a  lessee  covenants  that  he  and  his  assigns  will  repair  the  house  de- 
mised, BJid  the  lessor  grants  over  the  term,  and  the  assignee  does  nut 
repair  it,  an  action  of  covenant  lies  either  ai<;ainst  the  assignee  at  coni- 
iiion  law,  because  this  covenant  runs  with  the  land  ;  or  it  lies  against 
the  lessee,  at  the  election  of  the  lessor,  who  may  charge  bolh  ;  but  ct- 

(a)  Bull.  N    P.   VjO.  Esp    N    P.  28S.  3  S»lk.  4.  (>'■  E«P-  '^'    1*    =*i 

(e)  Dou?.   184.  100.  (d)  Il.ld    *CS.  n    (I.J 

(t)  Stous  r.  Evms,  a>U'    113.  (O  ' '""J    *^8.   764, 

(I)  i;tc.  Abr  tiu  ••  tovcn»at."  IE.  4  J  1  Boi.  !  Pul.  ::J.  -J  i-uVi  U.  >W. 


*2S&  Of  Assignments  and  under-Leases.     [Chap.  Xf. 

ccution  shall  be  against  one  of  them  only,  for  if  he  take  both  in  execu- 
tion, he  that  is  last  taken  shall  have  an  audita  querela  (a). 

So,  covenant  lies  against  an  assignee  on  a  covenant  not  to  plough,  al- 
though assigns  are  not  named  in  the  deed  ;  for  it  is  for  the  benefit  of 
the  estate,  and  runs  with  the  land  (/>). 

So,  if  J.  leases  lands  to  B.  and  B.  covenants  to  pay  the  rent,  repair 
houses,  <"^'c.  during  the  said  term,  and  afterwards  assigns  to  C.  the  as- 
signee is  bound  to  perform  the  covenants  during  the  term  of  the  first 
lessee,  though  the  assignee  be  not  named  ;  because  the  covenant  runs 
V  ith  the  land  made  for  the  maintenance  of  a  thing  in  esse  at  the  time 
of  the  lease  made  (r). 

A  covenant  may  be  dividable  and  follow  the  land  :  therefore  an  ac- 
tion of  covenant  will  lie  against  an  assignee  of  part  of  the  thing  de- 
mised {(l). 

Therefore,  where  one  demised  two  houses,  with  covenant  on  the 
part  of  the  lessee  for  himself  and  assigns  to  repair,  the  lessee  as- 
signed one  of  them,  and  for  not  repairing  the  lessor  brought  cove- 
nant against  the  assignee,  which  action  was  held  well  to  lie  (e).  So, 
in  case  of  eviction,  the  rent  may  be  apportioned  as  in  debt  or  re- 
plevin (/). 

So,  it  seems,  it  lies  by  an  assignee  of  part  of  the  estate  demised  :  or 
the  assignees  of  several  parts  may  join  (§•). 
■  The  assignee   of  part  of  an  estate  is  not  liable  for  rent  for  the 
whole  (/;). 

But  if  a  lessee  grant  or  assign  part  of  his  estate,  yet  the  entire  pri- 
vity of  contract  is  not  at  an  end,  and  the  lessee  would,  it  seems,  re- 
main liable  on  his  covenant  to  pay  the  entire  rent,  for  he  cannot  appor*^ 
tion  it  (/). 

.  Lessee  of  tithes  covenants  for  him  and  his  "  assigns,"  that  he  will 
not  let  any  of  the  farmers  in  the  parish  have  any  part  of  the  tithes :  this 
covenant  runs  with  the  tithes,  and  binds  the  assignee  (k). 

Where  a  covenant  is  for  the  benefit  of  the  estate  demised,  it  will  ex- 
tend to  the  assignee,  though  not  named. 

Therefore,  a  covenant  that  a  lessee  should  reside  on  the  demised  pre- 
mises during  the  term,  was  held  to  extend  to  his  assignee,  though  not 
named  in  the  covenant  (/). 

The  assignee  may  assign,  and  thereby  get  rid  of  his  subsequent  rent, 
and  of  the  covenants  which  run  with  the  land  :  and  as  he  may  do  so  at 
law,  so  afortiori  may  he  do  so  in  equity ;  for  though  the  tenant's  liability 

(aj  Cro.  .lac.  533.  (6)  Iliid.  125.  (c)  Bac.  Abr.  tit.  "  Covenant"  ("E.  3.> 

(d)  I  Roll.  5S2.  1.  5.  Jones.  215.  Cro.  Car.  222.  (e)  Ibid. 

(f)  2  East's  R.  575.  (g)  Com.  Dig.  tit.  "  Covenant."  [B.  3.J  1  Leon.  250. 

(A)  Ibid.  109.  Doug.  136.  (•;  Ibid.  Cro.  Eliz.  633.637.  3  East'i  11.579. 

<i)  3  Wils   25.  it)  2  H.  Bl.  R.   133. 


Chap.  XI.]     Of  Assignments  and  Viuhr-Lcascy.  -jHi 

on  his  covenant  to  pay  rrnt  subsists  iliirin^  the  conlinuancr  of  thn 
leasp,  notw  illietandin^  he  may  Ixtomip  a  l»aiikrnj)<  and  he  (h-privctl  of 
u!l  his  prop(  riy,  there  is  no  pcrsofial  conlidrncc  in  the  assi::nec  of  the 
lessee,  and  when  lie  parts  with  the  lease,  he  also  gets  rid  of  his  liahili- 
ty  (.0. 

lint  an  assiincr,  wlio  assic^ns  over,  is  liaMc  fo  covenant  for  tlie  rent 
iriciirred  (luring  his  enjoyment  ;  and  ii"  covenant  lie  brought,  he  may 
plead  that  f)eforc  any  rent  Mas  due  lie  granted  all  his  term  to  /.  .V.  uho 
by  virtue  thereof  entered  and  was  posses^^ed  (A) ;  antl  this  will  !)C  a  i;f>od 
discharge  without  ailedpin':;  notice  of  tlie  assii;nment,  and  tlic  assign- 
ment will  be  good  though  made  to  a  beggar,  or  tc.  a  person  leaving  the 
iingdom,  provided  the  assigmuent  lie  executed  lielorc  his  departure; 
or  therefore  mad<;  a  day  before  tlie  rent  due  to  a  prisoner  in  the  il(\t ; 
nor  can  the  plaintiff  take  advantage  of  it  by  replying /nr/rm/rZ/m,  im- 
less  lie  can  prove  a  trust :  it  was  the  lessor's  own  fault  and  folly  to  take 
the  first  assij;ncc  for  his  tenant ;  nor  is  he  without  remedy,  for  he  may 
bring  covenant  a:^ainst  the  lestce,  or  may  distrain  upon  the  land.     In 
truth,  if  you  have  no  remedy  against  the  assignee,  you  must  lose  your 
rent,  and  ^et  possession  of  tlie  premises  as  soon  as  you  can.     'J'lic  only 
case,  Lord  I'Jdon  thought,  in  wl.ich  a  question  of  fraud  con!d  arise, 
■was,  where  the  assignor  had  kept  possession  of  the  premises  of  w  hich 
he  made  a  profit,  and  had  made  an  assignment  to  prevent  rcspoiiMbi.ity : 
but  even  tiiere,  if  llic  jiossession  were  profitable,  there  would  alw:i\'B 
be  something  on  the  premises  for  the  landlord  to  dis-train  ;  for  whi'-h 
reason  his  Lordship  doubted  whether  there  ever  could  be  si.ch  a  thin:^ 
as  a  fraudulent  assignn-ent,  and  whether  an  issue  or.  such  a  point  could 
ever  be  well  taken.     The  defendants  in  the  principal  case,  had  a  right 
to  devest  themselves  of  the  interest,  by  the  mere  ftirm  of  an  asbiL;nuient, 
which  drives  the  plaintiir  to  take  possession.     IhiUrr.,  J.  also  tliouLht, 
that  the  otdy  case,  where  the  rcplication/;r'r//v/»(/rm  could  be  good, 
was  where  the  assignor  continued  in  possession  (r ). 

As  therefore  by  the  assignment  the  title  and  possessory  right  pass  anil 
the  assignee  becomes  possessed  in  law,  and  is  only  liable  w  !ii!c  in  actuai 
possession  (r/)  ;  so,  if  he  assign  over  before  a  breach,  tliough  his  as- 
signee have  not  taken  actual  possession,  yet  he  (the  first  assignee)  is 
not  liable  to  an  action  of  covenant  (<'•). 

It  is  not  necessary  that  notice  should  be  given  to  the  reversioner  of 
an  assignment  over.  In  an  action  against  the  assignee  of  a  term,  tiiv 
|)lea  of  an  assignment  over  ought  to  shew  that  such  assignmtnt  over  wac 
made  after  the  assignment  stated  in  the  declaration  :  but  if  it  does  not,  hq 

(a)2Atk.  5)6.     l2Mo<J.  23.    2Str.  1221.  I  T.  R  09.    8  T.  R.  61.    Poui:  461   In  a     I  Ilot.  b  Pull.  23.* 
(6^1  null.  N.  P   159.    4  Mod.  72.  W  Silk.  81.    4  MoO  71.     11' .Vod.  23. 

Poug  7C1.     inos.  kPuU.  23  ((f)  Uong  44J 

(•)  I  B.JiP.21  ■ 


282  Of  Assignments  and  Under-Leases,     [Chap.  XI. 

olijection  can  be  made  against  it  after  replication  that  such  assignment 
over  was  fraudulent  (r/). 

A\"here  there  is  an  exception  in  a  lease  of  an  entry,  and  liberty  to 
wash  in  the  kitchen,  and  a  passage  for  that  purpose,  an  action  will  lie 
against  an  assignee  for  hindering  the  lessor  ;  for  a  covenant  relating  to 
a  w  ay  or  other  profit  apprcndre  goes  with  the  tenement  aad  binds  the 
assignee  (6). 

If  a  man  leases  for  years,  and  the  lessee  covenants  for  him  and  his 
assigns  to  pay  the  rent,  so  long  as  he  and  they  shall  have  the  possession 
of  the  thing  let,  and  the  lessee  assigns ;  the  term  expires,  and  the  as- 
signee continues  the  possession  afterwards :  an  action  of  covenant  will 
lie  against  him  for  rent  behind  after  the  expiration  of  the  term  ;  for 
thougla  he  is  not  an  assignee  strictly  according  to  the  rules  of  law,  yet 
he  shall  be  accounted  such  an  assignee  as  is  to  perform  the  cove- 
nants (r). 

Touching  the  difference  of  debt  and  covenant  against  an  assignee,  it 
is  extremely  clear  that  a  person  who  enters  into  an  express  covenant  in 
a  lease,  continues  liable  on  his  covenant,  notwithstanding  the  lease  be 
assigned  over.  The  distinction  between  the  actions  of  debt  and  cove- 
nant, which  was  taken  in  early  times,  is  equally  clear :  if  the  lessee  as- 
sign over  the  lease,  and  the  lessor  accept  the  assignee  as  his  lessee,  ei- 
ther tacitly  or  expressly,  it  appears  by  the  authorities  that  an  action  of 
debt  will  not  lie  against  the  original  lessee  ;  but  all  those  cases  with  one 
voice  declare,  that  il  there  be  an  express  covenant^  the  obligation  on 
such  covenant  still  continues  :  and  this  is  founded  not  on  precedents 
only,  but  on  reason  ;  for  when  a  landlord  grants  his  lease,  he  selects  his 
tenant ;  he  trusts  to  the  skill  and  responsibility  of  that  tenant  ;  and  it 
cannot  be  endured  that  he  should  afterwards  be  deprived  of  his  action 
on  the  covenant  to  which  he  trusted,  by  an  act  to  which  he  cannot  ob- 
ject (as  the  assignment  of  a  bankrupt's  interest)  as  in  the  case  of  exe- 
cution. In  such  a  case  the  lessor  has  no  choice  of  the  under-tenant: 
so,  in  the  principal  case,  the  assignees  of  the  bankrupt  were  bound  to 
sell  the  term,  and  perhaps  they  might  assign  to  a  person  in  whom  the 
lessor  had  no  confidence ;  wherefore  the  lessee  was  held  liable,  notwith- 
standing his  bankruplcy.  Where  a  disposition  of  the  lease  has  been 
made  by  virtue  of  <x.  fieri  fad  a  s^  or  an  elegit,  the  lessee  continues  liable 
on  Ills  covenant,  notwithstanding  the  estate  be  taken  from  him  against 
his  consent  (d). 

An  assignee  is  not  liable  on  a  covenant  that  relates  to  something  not 
in  being  at  the  time  of  the  demise,  or  merely  personal  or  collateral  to 
the  thing  demised ;  as  to  pay  a  sum  of  money  in  gross,  to  build  de  novo, 

(a)  1  Ld  Raym.  367.     3  Salk.  48.  "  (i)  1  Show  3G8.     I  Sail:.  130. 

{c;  Bsc.  Alir.  tit.  "  Coveuaut."  [E.3.]  Stile, 407-  (.4)  4  T.  K.  38.    Jfoy.  Majt.  01.. 


Clia)).  XI.]       Of  Assii^nmcnls  iiml  I'liihr- Iauso;.  283 

or  the  like,  for  it  docs  not  rim  with  the  land,  and  therefore  ashignpci 
arc  not  hound  even  though  tluy  he  c.\|)ros>ly  named. 

Thus,  if  a  man  leases  sheep  or  any  lliini;  personal,  and  the  lessee  co- 
venants for  himself  and  "  his  assi,«;ns"  at  Ihe  end  of  the  term  to  deliver 
up  the  sheep  or  tliii)!;s  so  let,  or  sucli  a  price  for  thtm  ;  if  the  lessee 
assign,  tliis  lovenuut  shall  not  hind  thca.';ignec  ;  fur  it  is  hut  a  per- 
sonal contract,  and  wants  such  privity  as  is  hetwccn  the  lessor  and  the 
lessee  and  his  assigns,  hy  reason  of  the  reversion  (n). 

TitJies,  houcver,  are  so  far  assimilated  to  land,  heini^  the  profdi 
thereof,  as  to  ft)rm  an  exception  [h). 

As  the  assignee  of  a  term  is  not  liahlc  on  a  mere  collateral  covenant, 
therefore  where  the  lessee  of  certain  premises  covenanted  to  pav  imiu- 
ally,  during  the  term  of  twenty-one  years,  twenty  sliillinL;s,  to  tjjr 
churchuardens  of  Uie  parish,  his  assignee  was  hclil  to  he  not  lia- 
hlc {(■). 

But  though  generally  a  personal  or  collateral  covenant  aflects  not  an 
assignee,  yet  if  the  covenant  regard  something  to  he  done  uj)on  the 
land,  and  the  assignee  he  named,  though  it  were  not  in  heing  at  tJic 
lime  of  the  demise,  and  he  in  some  measure  collateral,  as  to  huild  a 
wall,  or  new  house  upon  the  land,  AV.  it  shall  hind  the  assignee  ;  he- 
cause  he  will  receive  the  henefit  of  it  (r/). 

Yet,  thoui^h  the  assignee  he  named  in  the  original  covenant,  if  it  lias 
heen  hrokcn  heforc  assignment,  no  action  will  lie  against  him  ;  for  he 
shall  not  beanswerahle  for  a  breach  which  he  never  committed. 

Thus,  where  the  lessee  covenanterl  to  pull  down  certain  old  houses, 
and  rebuild  others  within  seven  years,  hut  did  not  perform  the  cove- 
nant, and  at  the  end  of  seven  years  assigned  ;  an  action  was  hroiighl 
against  the  assignee  and  held  not  to  lie  ;  the  breach  being  complete  he- 
fore  the  assignment  (^)  :  had  the  covenant,  however,  been  broken  before 
the  assignment,  as  if  the  lessee  had  assigned  before  the  time  expired, 
the  assignee  would  have  been  liable  (/). 

Neither  is  an  assignee  liahlc  for  tlie  breach  of  any  covenant,  as  for 
rent  due,  after  he  has  assigned  over  his  term  ;  because  the  |)rivity  of 
estate  is  gone  :  and  this  though  tlie  assignment  over  be  made  without 
notice  to  the  lessor  :  and  though  such  assignment  goes  to  ihe  feinc  cO' 
ocrt  ;  for  she  may  purchase  (^^). 

The  assignee  therefore  of  a  term,  declared  against  as  such,  is  not  li- 
able for  rent  accruing  after  he  has  assigned  over,  though  it  be  stated 
that  the  lessor  was  a  party  executing  the  assignment,  and  agreed  thcrc« 

(n)  i  Co.  17.  3  Ren.  (tl  3  Wil<.  25.  (e)  Cro.  i«c  OS. 

(d,b  Co.  IS.  W.  Com.   Dii    tit.  •'  Covmint"  (C  3.]  Btill.  N    P    IS». 

(0  1  Bl.   R.  351.  3  Bur.   I'.'72.  a.  c.  (f)  .S«lk.  IM.  I  L.)    Riym   mt. 

(g)  IFrtm.  S3«.  Hoy.  Max.  91.  I  Sbotr.  at?.  Oeu;.  Hi.  C«.  LiL  3.  t.  3«.  b. 


284  Of  Assignments  and  Unchr-Lcases.     [Cimp.  XI» 

t)y  that  term,  which  ^vas  tleterminable  at  his  option,  sliall  be  abso- 
lute (rt). 

Yet  v\  here  a  breach  is  continuing  it  shall  be  otherwise  ;  as  if  a  cove- 
nant be  to  repair  within  such  time  after  notice,  if  the  lessee  does  not 
repair  upon  notice  by  the  assignee,  covenant  lies  ;  though  it  was  out  of 
repair  before  the  assignment  (6). 

A  rent  shall  not  be  decreed  against  the  assignee  of  a  wine-licence 
lease,  wlio  purchased  without  notice  of  the  rent  ;  for  the  rent  does  not 
run  with  the  licence,  but  is  due  upon  the  contract  only  (r). 

A  covenant  not  to  assign  generally,  must  be  person  1  and  collateral,, 
and  can  only  bind  the  lessee  himself ;  for  there  never  can  be  any  as- 
.  signee  {d). 

As  an  assignee  shall  be  bound  by  a  covenant  real  annexed  to  the  es- 
tate, and  wliich  runs  along  with  it,  so  shall  he  take  advantage  of 
such  (f). 

Therefore,  if  the  lessor  covenants  to  repair,  or  if  he  grants  to  the 
lessee  so  many  estovers  as  will  repair,  or  that  he  shall  burn  within  his 
house  during  the  term  ;  these,  as  things  appurtenant,  shall  go  with  it 
into  whose  hands  soever  it  comes  (/). 

So,  if  a  man  leases  land  to  another  I)y  indenture,  this  covenant  in 
law  created  by  the  word  "  demise,"  shall  go  to  the  assignee  of  the  terra^ 
and  he  shall  have  advantage  of  it  {^). 

But  though  generally  an  assignee  of  a  terra  Avho  colnes  in  by  act  of 
law,  as  well  by  deed  as  by  statute-merchant,  shall  have  the  benefit  of 
covenants  ;  an  assi'^nee  of  a  lease  by  estoppel  is  an  exception  to  the  rule  ; 
for  there  is  a  difl'erence  where  a  covenant  is  annexed  to  a  thing  which 
of  its  nature  cannot  pass  at  the  first  without  deed,  and  where  not ;  for 
in  the  first  case,  the  assignee  ought  to  be  in  by  deed,  otherwise  he 
shall  not  have  advantage  of  the  covenant  (h). 

If  one  by  indenture  lease  a  house  for  forty  years,  and  tJie  lessee  co- 
venants with  the  lessor  tliat  he  will  sufliciently  repair  the  house  during 
the  term,  and  that  the  lessor  may  enter  every  year,  to  see  if  the  repairs 
arc  done  :  and  if  upon  view  of  the  lessor  it  was  repaired  according  to 
the  agreement,  that  then  the  lessee  should  hold  the  house  for  forty  years 
after  the  first  term  ended,  and  the  lessee  grants  to  another  all  the  in- 
terest in  the  term  and  terras  which  he  had  in  the  tenements,  and  after 
the  first  term  ended  ;  the  assignee  shall  not  take  the  benefit  of  this 
agreement. 

But  if  J.  leases  a  house  to  B.  for  years,  who  covenants  to  repair,  and 
that  J.  his  heirs,  executors,  and  administrators,  may  at  all  times  enter, 
and  see  in  what  plight  the  same  is ;  and  if  upon  such  view  any  default 

(a)  Doug.  7G4.  (b)  Com.  Dig.  tit    "  Covenant "  [B.]  (c)  Hard.  88. 

(iJ)  3  Wils.  33.  <e)  Bac.  Abr.  tit.  "  Covenant."  'E.  5.]  (/)Ibicf. 

(f)  Ibid.  (h)  Cro.  Eliz.  373.  437. 


Chap.  XL]  Of  Assi^iwirnfs  and  rwJcr-Lcnscs.  2B.'} 

fihall  l)c  found  in  llir  not  repairing,  ami  thereof  warning  slnll  be  given 
to  li.  his  excculor.s,  &.c.  then  within  four  ninnlhs  arter  such  warning 
such  default  shall  he  amended ;  and  afterwards,  the  liousc  in  default 
of  li.  hecorues  ruinous,  and  ./.  grants;  the  reversion  t.>  C.  who  upon  view 
of  the  house  ylvcs  warniii;,'  to  li.  nf  the  default,  vV^c.  if  it  l»c  not  repaired 
C.  n>ay  have  an  artion  as  aF.M-iifi;  of  ./.  nuainst  II.  tliouidi  the  li  jusc 
became  ruiuous  before  (\  was  entitled  to  the  reversion;  for  tl>c  art  ion  is 
not  founded  upon  the  ruinous  state  of  the  Jioiisc,  and  the  time  when  it 
first  happened,  but  for  not  repairing  withiu  the  lime  appuinJed  by  the 
covenant  after  tlie  warning  (^i). 

liut  an  a«si^n;e  shall  not  have  an  aetion  upon  a  brcaeh  of  covenant 
before  his  own  lime  (^.) 

Tiie  assi^;nee  of  a  Icriu  may  take  advantage  of  a  covenant  ag:un-t  the 
assignee  of  the  reversion  ;  and  he  may  have  this  remedy  by  w;iv  of  re- 
tainer against  such  assignee. 

Therefore  where  A.  leased  I mds  to  /?.  for  two  luindred  years,  and 
by  the  same  ilecd  covenanted  lor  liiinself,  his  heirs,  and  assigns,  with 
I^.  his  executors,  and  assigns,  that  if  7A  were  disturbed  for  respite  of 
liomage,  or  enforced  to  pay  any  charge  or  issues  lost,  he  should  with- 
hold so  nuicli  of  his  rent  as  he  should  be  enforced  to  pay,  and  J.  grints 
his  reversion  to  C.  and  li.  assigns  tiic  term  to  /),  1).  jnay  take  tlie  bene- 
fit of  this  covenant  against  C.  fi)r  it  runs  with  the  land  (<  ). 

An  assiijncc  sliall  not  be  prevented  of  a  benefit  allowed  by  law,  for 
the  avoidance  of  a  rent  (f/). 

At  common  law,  no  grantee  or  assi:;nce  of  a  vcversion  could  lake  the 
benefit  or  advantage  of  a  couilition  for  re-entry.  It  was  therefiire 
enacted  by  stat.  3J  //.  8.  c.  3  t.  that  all  persons  grantees  of  the  rever- 
sion of  any  lands  from  the  king,  or  grantees  or  iissi^M)':'es  of  any  common 
person,  their  heirs,  executors,  successors,  and  assigns,  sliall  have  li!:o 
advantage  against  the  lessies,  i^c.  by  entry  for  non-payment  of  rent,  or 
for  doing  waste  or  other  forfeiture,  and  the  same  remetiy  by  action  only 
for  not  performing  other  conditions,  covenants,  and  agreements  con- 
tained in  the  said  leases,  as  the  lessors  or  grantors  themselves  had. 

On  this  sbitute  it  is  to  be  observed, 

1.  That  as  the  words  of  t!ic  slalulc  are  against  lessees,  it  does  not 
extend  to  covenants  upon  estates  in  fee  or  in  tail,  but  only  upon  leases 
made  for  life  or  years  (r). 

2,  That  an  assignee  of  part  of  the  estate  of  the  revevfion  may  lake 


L*)-' 


(a)  nac.  Ahr  u(a>if' 

'  )  Cro.  r.iie.MJ. 

U)  H^i>   N.  V   -^n-t     1 

.58 

i!S6  Of  Assigmncnls  and  Under- Leases.     [Chap.  Xl. 

advantage  of  the  condition ;  as  if  lessee  for  life  be,  &c.  and  the  re- 
version is  granted  for  life;  so  if  lessee  for  years,  Src.  be,  and  the 
reversion  is  grant-d  for  years,  the  grantee  for  years  shall  take  ad- 
vantage of  tlie  condition  in  respect  of  the  word  "  executors"  in  the 
Act  {a). 

3.  But  a  grantee  of  part  of  the  reversion  shall  not  tate  advantage  of 
the  condition  ;  as,  if  the  lease  be  of  three  acres,  reserving  a  rent  upon 
condition,  and  the  reversion  is  granted  of  two  acres,  the  rent  shall  be 
apportioned  by  the  act  of  the  parties,  but  the  condition  is  destroyed, 
for  that  it  is  entire  and  against  common  right :  except  indeed  in  the 
case  of  the  king  (i). 

4.  Whoever  comes  in  by  the  act  of  the  party,  as  by  bargain  and  sale 
of  the  reversion,  or  by  grant  of  the  reversion  in  fee  to  the  use  of  A,  is  an 
assignee  nithin  the  statute,  as  the  bargainee  in  the  one  case,  and  A.  in 
the  other  (r). 

But  such  as  come  in  merely  by  act  of  law,  as  the  lord  by  es« 
cheat,  or  are  in  of  another  estate,  shall  not  take  benefit  of  the  sta- 
tute (d). 

5.  The  grantee  shall  not  take  advantage  of  a  condition  before  he  has 
given  notice  to  the  lessee,  but  he  may  of  a  covenant  (e). 

6.  The  grantee  or  assignee  shall  take  advantage  of  such  conditions 
only  as  are  incident  to  and  for  the  benefit  of  the  reversion  ;  as  rent, 
waste,  repairs,  making  fences,  scouring  ditches,  preserving  woods, 
and  such  like  ;  and  not  for  the  payn.ent  of  any  sura  in  gross,  the 
delivery  of  corn,  wood,  or  the  like.  So,  "  other  forfeiture"  relatei 
to  such  things  as  are  incident  to  the  reversion  and  run  with  the 
land  (/). 

7.  The  assignee  of  the  lessor  may  maintain  covenant  against  the  les- 
see after  the  lessee  had  assigned,  and  he  had  accepted  rent  from  the  as*, 
signee,  for  such  is  within  the  statute  (g). 

So,  an  assignee  of  a  reversion,  who  hath  accepted  rent  from  the  as- 
signee, of  the  term,  may  maintain  covenant  against  the  executor  of  the 
lessee,  or  the  assignee  of  the  term  for  a  breach  of  covenant  running 
with  the  land,  though  it  be  committed  after  the  assignment  of  the  re- 
version (A).  ^ 

But  otherwise  it  is  of  a  covenant  in  land,  which  is  only  cr'^ated  by 
the  law,  or  of  a  rent,  which  is  created  by  reason  of  the  contract, 
and  is  by  reason  of  the  profits  of  the  land,  wherein  none  is  longer 
chargeable  w  ith  them  than  w  hilc  the  privity  of  estate  continue  m  ith 
them  (/). 

S.  The  surrenderee  of  a  copyhold  reversion  may  bring  debt  or  cove^ 

(a)  Co.  Lit.  215.  a.  (6;  Ibid.  (c)  Ibid. 

(d)  Ibid.  ft)  Cro.  Jac.  476.  ( f)  Co.  Lit.  215.  b' 

(S]  2  Sho^.  J3*.  (A;  do.  Jac.  i22.  (i)  Ibid.  525. 


Chap.  Xr.]     Of  Assif^nmcnts  and  Vuihr-Li'ases^  287 

nanl  ajrain!<t  tlie  lespcc  villiin  the  equity  of  this  statute,  for  it  is  a 
remedial  law,  and  no  prejudice  can  arise  to  the  I«)rd  {a). 

Jssii^nmnit  liij  nay  of  Murt^ai^c. —  With  ri^pect  to  assignuitnts  l)y 
way  of  mortgage,  iK-iiig  niertly  conditional,  th<y  are  not  consiilercU  as 
an  actual  transfer  of  properly,  l)ut  as  a  security  only  for  money. 

So,  if  a  Icwee  for  jears,  ^vith  covenants  to  repair,  assij^nfi  to  J.  S.  l»y 
way  of  mortgage,  and  J.  S.  never  enters,  equity  will  not  compel  him 
t(.  repair,  though  Jie  had  the  whole  interest  in  him  :  ami  though  it  was 
hi  fwn  folly  to  lake  an  atsigmiicnt  of  the  old  term,  uhen  he  should 
have  taken  a  derivative  lease,  by  which  means  he  would  not  be  liable 
at  law  (//). 

But  a  cas€  occurs,  where  such  an  assignee,  thougli  lie  never  entered, 
and  had  lost  hi?  mortgage  money,  was  by  law  compelled  to  pay  the 
rent,  and  lia\  ing  sued  in  equity  could  have  no  relief  (0-  And  it  is 
now  held  that  the  mortgagee  having  the  legal  estate  shall  be  liable  as 
assignee,  w  hether  in  possession  or  not  {d). 

If  mortgagor  and  mortgagee  make  a  lease  in  which  the  covenants  for 
the  rent  and  repairs  are  only  with  the  mortgagor  and  his  assigns,  the 
assignee  of  the  mortgagee  cannot  maintain  an  action  for  the  breach  of 
these  covenants,  because  they  are  collateral  to  his  grantor's  interest  in 
the  land,  and  therefore  do  not  run  with  it  (r). 

But  if  the  tenant  for  a  term  convey  the  term  by  way  of  mortgage, 
and  then  join  w  ith  the  mortgagee  in  a  lease  for  a  shorter  term,  in  which 
the  covenants  for  the  rent  and  rejairs  arc  only  witli  the  mortgagor  and 
his  assigns,  and  the  inteieMs  of  the  mortgagor  and  mortgagee  become 
extinguised  during  the  lease  by  the  reversioner  acquiring  their  estates, 
still  the  mortgagor  may  maintain  an  action  of  covenant  against  the  les- 
see, the  covenants  being  in  gross  (/). 

That  which  cajinot  be  supported  as  an  assignment  shall  be  good  as 
an  under-lease  against  the  party  granting  it  [q). 

Under  a  proviso  that  all  assignments  of  a  lease  shall  be  void,  if  not 
enrolled,  under-leases  are  not  included  (A)- 

An  undcr-leafe  is  not  an  assignment  to  the  e/Tect  of  working  a  forfeit- 
ure  under  a  proviso  not  to  assign. 

It  has  therefore  become  usual  to  insert  a  proviso  in  leases,  that  the 
lessee,  f^^r.  shall  not  let,  set,  transfer,  or  assign  over  or  otherwise  part 
w  ith  the  w  hole  or  amj  part  of  the  premises  (/). 

An  under-lease,  made  by  a  lessee  for  years,  determinable  on  a  future 
day  certain,  and  to  commence  immediately  on  his  death,  ifi  good,  he 
dying  w  ilhin  the  time  (A). 

Therefore  a  man  possessed  of  a  term  for  twenty  years,  may  gran< 

(a)  I  Salk.  185.  tk)  Dauj.  «€2.n.  J.  2  Verc  Tb  (OlbW-  37i. 

(d^  S.one  V.  Ev.n,.  .n/,  ,13.  (.)  •  T.  R.  3«.  (/)  W^-^  ff )  Door  IM  D. 

iMM  W.3Wifa.fM   2BI  n.7$7.H,i.1.i7,  ICi  :TH«r^  JT^,,.   ^n 


'28-J  Of  Assignments  and  Vnder-Lcascs.      [Chap.  XI. 

the  lands  for  nineteen  years,  to  commence  after  his  death,  and  it  ^viil 
be  good  for  so  many  of  the  twenty  years  as  thall  l)c  unexpired  at  the 
time  of  his  death  (ci). 

It  was  formerly  held  that  an  action  on  the  case  AvouJd  lie  ])y  a 
lesFce  for  years  against  his  under-tenants  for  so  negligently  keeping  his 
fire  that  the  premises  were  burned  down  :  though  not  against  a  tenant 
at  will  {b). 

But  by  slat.  14  G.  3.  c.  28.  s.  8G.  it  is  enacted,  that  no  action,  suit, 
or  process  whatever,  shall  be  had,  maintained,  or  prosecuted,  against 
any  person  in  whose  house,  chamber,  stable,  ]>arn,  or  other  building, 
or  on  whose  estate  any  fire  shall  accidentally  begin,  nor  shall  any  rc- 
compence  be  made  by  such  person  for  any  damage  suffered  thereby, 
any  law,  usage,  or  custom  to  the  contrary  notwithstanding. 

The  landlord  or  original  lessor  cannot  sue  an  under-tenant  on  a  cove- 
nant for  rent  contained  in  the  original  lease  (r). 

An  under-tenant,  whose  goods  were  distrained  and  sold  by  the  origi- 
nal landlord  for  rent  due  from  liis  immediate  tenant,  cannot  maintain 
an  action  for  money  paid  to  the  use  of  the  latter:  for  immediately  on 
the  sale  under  the  distress,  the  money  paid  by  the  purchaser  vested  ia 
the  landlord,  in  satisfaction  of  the  rent,  and  never  was  the  money  of  the 
under-tenant  {d). 

An  under-lease  of  the  whole  term  amounts  to  an  assignment  {c). 

But  if  the  lessor  reserves  the  rent  to  himself  on  granting  over,  it  is 
an  under-lease  and  not  an  assignment,  though  he  parts  with  the  whole 
tcrm(/). 

An  action  will  lie  by  the  assignee  of  a  reversion  for  ye;ars  against  an 
under-lessee  on  a  covenant  to  leave  the  premises  in  repair  (^). 

(a)  2  Sir.  737.  (b)  4  Mod.  9.  12.  Mot'.  15.  (c)  Dcug.  1E3.  (d)  11  East.  58 

[e)  \  VS.  lla.yni.  ?9.  (/)  1  Sir.  40-1  Sedvidc  auU.  (g)  Cro.  Eliz.  S96. 


2«9  ] 


(  IIAI'TKJ^   Ml. 


Of  Changes  hapjtrnini^  hjj  Mnrrlin^c,  Uaiil>yi'pici/,  Insohrn- 
cj/y  or  Dculh  :  irfifiiiu  of  Assi^^lurSy  Dcvisica,  Extru- 
tors,  and  Adminisfralors,  and  in  whal  Cases  ihcy  arc  bound 
hi/y  and  mai)  lali  adiunlai^v  of  CoKnants. 


CHANGES  h;/  Marriage. — The  marriage  is  a  gift  inlaw  to  t!ie 
husband  of  all  the  wife's  chaltcls  real,  as  tlic  term  for  yeaf^  in  rr^ht 
oi"  his  wife  ;  f?o  of  estates  by  slatiile-mcrchant,  statute-staple,  elegit, 
«S'v.  ai.clof  these  he  may  alone  dispone,  or  forfeit,  or  they  may  be  ex- 
tended for  his  debts  {a). 

Kut  if  he  makes  no  disposition  of  them  in  his  lifetime,  they  survive 
to  his  wife,  and  tiierefore  he  cannot  devise  them.  I'or  the  husband  is 
omy  possessed  of  a  terra  in  her  right ;  and  the  term  or  legal  interest 
contmiirs  in  h'-r  (/>)  :  for  tiie  law  does  not  love  that  rights  should  lie 
destroyed;  but,  on  the  contrary,  for  the  supporting  of  thnn  invents 
notions  and  fictions,  as  abeyance,  A'-r.  (r). 

.S'l  L  iemc  covert  is  of  cipacity  to  purchase  of  others  without  the 
consent  of  her  husliand,  an^l  though  l»c  may  disagree,  and  divest  the 
estate,  yet  if  Jie  neither  agree  nor  discjgree,  tlic  pmchase  is  good  (<0« 
If  a  woman,  lessee  for  years,  talrcs  husl)and,  wlio  afterwards  pur- 
chases a  new  lease  to  them  both  for  their  lives  of  the  same  lands,  this 
is  a  surrender  in  law  of  the  first  term,  and  sliall  l)ind  the  wife  ;  be- 
cause it  amounts  to  an  actual  disposition  thereof,  which  the  husband 
had  power  to  nr.ke  (r). 

So,  if  a  man  marries  a  woman  who  is  cestui  (juc  trust  of  a  term,  the 
husband  may  as  well  dispose  of  this  trust  as  if  the  lezal  interest  was 
in  her  (/).  But  not  if  the  trust  was  created  with  his  privity  and  con- 
sent (5-). 

Even  where  the  linsband  was  possessed  of  a  term  in  ri|,'ht  of  liis 
Avife  from  whom  he  was  divorced  n  mcnsd  i\'  thorn  ;  he  was  restrained 
from  selling  it  (/t). 

(n)  B«c.  Abr.  tit.  •'  Baroo  et  FfniP."  [C.  3.]       {b)  l\nl       {r1  1  lA  Rnjrm.  415  Ctt.  X.WWi 
(d)  llHd.  3.  »    "t    »•  <«•)  nac.  Abr.  vl  anir.  '^  1   Vrm  7    i<i   .1411    kV, 

(iOlhi'.'.  fV)''Mo'».  4<. 


290  Of  Changes  happening  [Cliap.  Xll. 

But  such  term,  whereof  the  husband  is  possessed  in  right  of  his 
wife,  may  be  extended  for  the  debts,  or  forfeited  for  the  crimes  of 
the  husband  ;  for  these  are  legal  dispositions  thereof,  which  shall  bind 
the  wife  {ci). 

But  if  a  husband  should  grant  a  rent,  common,  ^c,  out  of  such 
term  and  die,  this  woidd  not  bind  the  wife  surviving,  because  the 
ternj  or  possession  itself  being  left  to  come  entire  to  the  wife,  all  inter- 
mediate charges  or  grants  thereout  by  the  husband  determine  with  his 
death  ;  for  the  title  of  the  wife  to  such  term  has  relation  to  the  time 
of  their  intermarriage,  and  so  is  paramount  to  all  collateral  charges  or 
grants  made  thereout  by  the  husband  after. 

So,  a  grant  by  the  husband  of  the  herbage  or  vesture  of  such 
land  which  he  held  in  right  of  liis  wife  for  years,  will  be  void  after 
bis  death  ;  because  they  are  part  of  the  land  itself,  and  not  collateral 
to  it  (v). 

If  the  husband  and  wife  be  evicted  of  a  term  which  he  hath  in 
right  of  his  wife,  and  the  husband  brings  an  ejectment  in  his  own 
name,  and  hath  judgment  to  recover,  this  makes  an  alteration  in  the 
term  and  vests  it  in  the  husband ;  because,  not  making  his  wife  a 
party  to  the  recovery,  he  takes  the  whole  wrong  to  be  done  to  himself, 
Jind  consequently  if  he  recovers,  it  must  be  by  virtue  of  that  right 
whereof  he  was  disseised. 

An  estate  by  the  curtesy  is  subject  to  the  charges  of  tlie  wife  :  so 
that  if  a  woman,  tenant  in  tail,  acknowledges  a  statute  and  afterwards 
marries,  has  issue,  and  dies,  the  lands  may  be  extended  in  the  hands 
of  the  husband  holding  as  tenant  by  the  curtesy  (c).  So,  where  a 
husband  is  but  tenant  by  the  curtesy,  and  has  only  an  interest  for 
life  in  the  wife's  estate,  hs  cannot  ailect  that  estate  without  her 
jpining  [d). 

Husband  and  wife  make  a  lease  for  years  by  indenture  of  the  Avifc's 
lands  reserving  rent ;  the  lessee  cntei's ;  the  husband  before  any  day 
of  payment  dies,  the  wife  takes  a  second  husband,  and  he  at  the  day 
accepts  the  rent  and  dies  :  it  was  holden,  that  the  wife  could  not 
now  avoid  the  lease,  for  by  her  second  marriage  she  transferred  her 
power  of  avoiding  it  to  her  husband,  arid  his  acceptance  of  the  rent 
bin.'s  her,  as  her  own  before  such  marriage  would  have  done  :  for  he, 
by  the  marriage,  succeeded  into  the  power  and  place  of  his  wife, 
and  what  she  might  have  done,  either  as  to  affirming  or  avoiding 
such  lease  before  marriage,  the  same  may  the  husband  do  after  the 
marriage  (<?). 

As  the  wife's  acceptance  of  renter  fealty,  &c,  will  make  good  and 
xinavoidable  leases  for  years,  made  by  her  and  her  husband  at  common 

fa;  nae.  Abr.  ulnrat.  (6;  Ibid.  (c)T)ytT.  51.  b.   1,2.  (4)  3  A.U.  435, 

if)  Bac  Abfi  tit.  '.'  Baroo  wi  Feme."  [I  ]  l  Sslk  4t 


«  hap.  XH.]  hy  Maninc^f,  \i.  I'Ol 

law,  or  1))'  her  liiishaiid  solely,  if  tluy  I)c  l)y  iiide'tiliiro  or  (l(«(lpofil  ; 
BO,  if  tlie  wife  die  hefore  her  hiisljuiid,  tlic  fame  the  lion  ami  power  of 
ullirmin^ or  avoiding  such  leases  <!csceiidK  to  her  issue  or  hrir:  fr»r 
£uch  leases  are  good,  till  tliose  who  siiecced  lo  the  otulc  defeat  and 
avoid  them  by  their  di«ai;recinent  thereto  {n). 

Therefore  where  a  woman  tenant  in  tail,  havinp;  is«iic  hy  a  former 
hnshand,  after  his  deatli  married  a  scroiid  hnsliand,  and  Ihcy  hy  in- 
denture, j.iincd  in  a  lease  for  years  of  the  wife's  lands,  rendcrinq;  rent, 
and  llien  the  wife  died  without  issue  Iiy  the  second  liushand,  so  that 
he  was  not  entitled  to  he  tenant  hy  the  curtesy,  it  was  iioldcn, 
that  till  the  issue  by  the  IJrbt  iai.-band  entered,  this  lease  reiuained 
good  (A). 

So,  where  a  man  seised  of  land  in  rigid  of  his  \\l/c,  makes  a  leaFc 
for  years,  renderini;  rent,  and  then  his  wifetiics  \\ilhoiit  i;-sue  by  him, 
V'hcreby  he  is  not  tenant  by  the  curle.^y,  but  his  estates  detenuined  : 
yet  he  may  avow  for  the  rent  till  the  heir  hath  made  his  actual  entry, 
because  the  lease  was  at  first  good,  and  drawn  out  of  the  eeisin  of  the 
uil'e;  and  therefore,  till  the  entry  of  the  heir,  remains  good  between 
the  lessor  and  the  lessee,  so  that  tiie  lessee  may  maintain  an  action  of 
covenant,  and  the  lessor  distrain  and  avow  for  the  rent,  till  tiie  heir 
hath  entered  (r). 

If  a  term  of  years  ])c  gratitcd  to  a  feme  covert  and  another,  or  if  a 
ferae  sole  and  another  are  joint  tenants  of  a  term  of  years  and  the  feme 
takes  husband,  yet  in  both  cases  the  joint-tenancy  still  continues,  for 
the  marriai^e  makes  no  severance  or  alteration  «)f  it,  but  gives  the 
luisljaiid  llic  same  power  his  wife  had  before,  by  an  actual  disposition 
of  her  moiety  to  break  the  joint-tenancy,  and  bind  his  wife's  interest 
tlicrein  ;  but  without  sucli  disposition,  the  joint-tenancy  continues,  aiid 
if  the  husband  dies,  the  whole  shall  go  accordingly  ((/). 

So,  if  such  joint-tenants  are  ousted  of  the  term,  the  wife  shall  join 
>vtth  tiie  husband  and  the  other  joint-tenant  in  ejectment,  and  the  wife 
shall  have  judgment  to  recover  as  well  as  the  husband  :  and  if  in  such 
case  l)efore  any  actual  disposition  jnade  by  the  husbaml,  his  w  ifc  die, 
the  whole  term  shall  go  to  the  surviving  joint-tenant  and  no  part 
thereof  to  the  husband  :  becau.'^c,  thougli  the  hiisl)and,  if  he  survives, 
is  by  law  to  have  all  chattels  real  and  personal  of  his  wife's,  and  this 
term  was  a  chattel  real,  yet  the  title  ol  the  other  joint-tenant  to  have 
the  whole  by  survivorship,  coming  at  the  sanic  instant  and  bcin^  the 
elder  title,  shall  prevail  against  the  husband  (r). 

Although  by  the  marriage,  the  husband  and  wife  become  one  person 
in  law,  and  therefore  such  an  union  works  an  extinguishment  or  revoca- 
tion of  several  acts  done  by  lier  before  the   marriage,  vet  in  Ihin;^^*: 

(aj  Rac.  A\ir.  ut  antt.  l     Va'-'-  ";   rVI.1 

c*!  Bac  Afcr   m.  ••  Mttt\  miTtyit  "  'I  ] 


292  Of  Chajfgca  happening  [Cbap.  XII. 

which  Mould  be  manifestly  to  tlie  prejudice  of  both  husband  and  wife, 
the  law  does  not  make  her  acts  void  [a). 

Iliercfore,  if  a  feme  sole  makes  a  lease  at  -vvill,  or  is  lessee  at  wilL 
and  afterwards  marries,  the  marriage  is  no  determination  of  her  will,  so 
as  to  make  the  lease  void  ;  nor  can  she  herself  a\  itiiout  the  consent  of 
her  hus!)and  determine  the  lease  in  either  case  (A). 

The  husband,  as  head  or  governor  of  the  family,  has  an  absolute 
power  over  the  chattels  real  and  personal  of  which  he  is  possessed  in 
ri"-lit  of  his  wife,  to  dispose  of  them  as  he  thinks  proper,  and  no  act 
or  concurrence  of  her's  is  of  any  avail,  either  in  confirming  or  control- 
ingsuch  disposition  (c). 

Therefore,  if  an  express  condition  (as  to  pay  rent)  be  annexed  to 
the  estate  of  a  woman,  who  takes  husband,  the  laches  of  the  husband 
to  perform  the  condition,  loses  the  estate  for  ever  (d). 

But  the  laches  of  the  husband  to  perform  a  condition  in  lav/,  which 
does  not  require  skill  or  confidence,  (as  not  to  alien  in  fee)  does  not 
prejudice  his  wife  (r). 

The  real  estate  however  of  the  feme  is  under  a  different  regulation 
from  tliat  by  which  her  chattels  real  and  personal  arc  governed,  for 
it  is  under  the  power  of  the  husband  no  longer  than  during  the 
coverture,  and  therefore  any  disposition  of  it  made  by  him  alone 
may  be  defeated  ;  also,  all  charges  laid  on  it  by  liim,  fall  ojT  with  his 
death  (/). 

But  the  husband  during  coverture  may  take  the  rents  and  pro- 
fits of  the  whole  estate  of  his  wife  :  and  as  he  has  the  sole  disposi- 
tion of  all  interests  of  his  wife,  he  may,  for  an  interest  which  vests 
in  the  wife,  or  accrues  to  her  during  coverture,  either  sue  alone,  or 
with  his  wife  (^). 

If  a  feme  sole  hath  riglit  to  have  common  for  life,  and  she  takes 
husband,  and  he  is  hindered  in  taking  the  common,  he  may  have  an 
action  alone  without  his  wife,  it  being  only  to  recover  damages  (//). 

But  if  baron  and  feme  are  disseised  of  the  land  of  the  feme,  they 
must  join  in  action  for  the  recovery  of  the  land  (/). 

If  J.  demise  a  house  to  B.  for  years,  and  B.  covenants  to  repair 
the  said  house  during  the  term,  and  afterwards  yl.  grants  the  reversion 
to  baron  and  feme,  S^c.  the  baron  may  have  an  action  alone  upon  this 
covenant  [k). 

But  if  lands  be  conveyed  with  a  covenant  for  further  assurance  to 
husband  and  wife,  she  nuist  be  joined  with  him  in  an  action  for  the 
breach  of  such  covenant  (/). 

In  those  cases  where  the  del;t  or  causeof  action  will  survive  to  the 

(«;nac.  Abr.tlt.  "Itaioii  riniJ  Feme,"  [ii.]  (b)  Ibid.  (t)  liac.  Ahr.  tit- iit ante.  [1] 

(J)  Co.  lit.  21C..  b.  (t)  Ibid.  ::23.  h.        (/)'Bac.  Abr.  ut  (inle.  (g)  Com.  Dig.  Ut.  "  Baron  anJ 

Ktme."  [O]        i,h)  Uac.  A\)'.  '.it    ^<;  ':,tf.  [K.i  (I'.l  Ibid.        CIc}  VAii.  in  n.        (/)  Cro.  Car.  60ij. 


Chap.  Xir.]  Inj  Marriac^c,  &'c,  COr* 

wife,  the  liiisbaiid  and  wife  arc  rot;:ii!arIy  to  join  in  the  action  ;asin  rr- 
CDvcrinu:  dclits  due  to  the  ^\ift;  hclVjic  inarriai'p,  in  actions  relating  to 
her  freehold  or  iulieritancc,  or  injuries  done  to  her  person  (^■). 

Itj  other  cases,  as  in  actions  for  a  profit  accrued  »lurini^  the  coverture 
to  tiie  husl)and  in  right  of  his  wife,  in  which  the  hiishund  nuy  m.i: 
alone  or  ji)in  uitii  his  wife,  it  is  the  more  sure  njode  to  join  (^0). 

If  there  he  a  lease  I)y  the  *\ife  dunt  sola,  payment  of  the  rent  ought 
to  he  to  the  htisl)and  ;  and  payment  to  tlic  wif.;  without  the  hushamrft 
order,  though  there  he  no  notice  of  the  marriage,  sliall  not  dischariiC 
the  lessee  (< ).  [F(jr  otiicr  matter  rilativc  to  liii.,  subject  sec  ante  C. 
111.5.  IJ.] 

Of  Doner. — A  woman  is  entilli d  to  dower  of  a  reverr^ion  evportant 
on  a  term  for  years.  Thus  if  a  man,  either  hefore  or  alter  marriage, 
make  a  lease  for  years  reserving  rent,  his  wife  will  he  entitled  to  a 
tliirtl  of  the  land  for  her  dowry,  and  also  to  a  third  of  the  rent,  as  inci- 
dent to  the  reversion  (r/). 

The  widow  hoitls  her  dower  discliarged  from  a!!  judzments,  leases, 
mortgages,  or  other  incumbrances,  made  or  created  by  her  husband 
after  the  marriage  (r). 

Dow  er  is  even  protected  from  distress  for  a  debt  due  to  the  crown, 
contracted  (hiriiiji;  the  marriage  ;  and  if  t!ie  lands  are  distrained  ujwn, 
the  dowere?s  may  have  a  writ  to  the  sIiciifF  commanding  him  not  to 
distrain,  or  to  restore  tlie  di.slrchs,  if  any  be  taLcn  ( /'). 

A  rent  issidng  out  of  land  wlicreof  a  woman  is  dowal)!c  may  he  as- 
signed in  lieu  of  dower:  and  if  a  tenant  in  tail  assign  a  rent  out  oftlin 
land  intailcd  to  a  woman  entitled  to  dower  out  of  such  estate  tail,  not 
exceeding  the  yearly  value  of  her  dower,  it  will  l»ind  the  issue  (^). 
But  rent  assigned  in  lieu  of  dower,  as  it  comes  in  lieu  of  land,  ought  to 
be  absolute  as  tlic  assigimient  of  the  land  itself  (h). 

A  jointrcFs  is  not  so  favoured  in  law  as  a  »low cross.  But  the  Court 
of  Chancery  will  set  aside  a  term  of  years  in  f.ivour  of  a  jointress, 
though  it  will  not  do  so  in  favour  of  a  woman  entitled  at  law  to  dower  ; 
because  a  jointress  has  a  fixed  interest  by  the  agreement  of  the  i)arty  (/). 

Of  Changes  by  Dankrtipfctf.-^ThG  legal  right  that  the  landlord  has  to 
distrain  the  goods  of  his  tenant  for  rent  in  arrear,  is  not  ailectcd  by  the 
tenant's  bankruptcy  while  the  goods  remain  on  the  premises. 

For  a  landlord  is  con^idered  in  a  higl'.er  degree  than  a  rnmmon  cre^ 
ditor,  and  it  uould  be  hard  to  prerhide  jiim  from  distraining,  where 
there  are  goods  on  the  premises  (A}. 


(a)  B.^r.  Abr.  uf  antt.           {h)  Com.  U\g.  iH.  "  nar.in  tnd  Feme"  fX  ]  <')  '•>'<•    fO.J 

(d)  I  luit.  32.  t.  I  Craija  Dig.  Ut.  6.  c.X  i.  10,  H.                       («'  I  Ih'J    ««    »  4  R«T»   «*   •• 
♦ti-uiiic'ii  ni?  Ut.  6.  c.  3                                 (  /J  I  '""t-  3'-  ••  *'    ?••  *■   I*'   '  '  "-•  ^  ""**   •    *'• 
(?)  1  Roll.   Abr.  6?-:  ■'■''.      '■•  .     ."»  f'V  J'rr-         r^.    ;       .  ■     ,,  .    ...    r    ,    u 


tK)i  Of  Changes  happening  [Chap.  X  (I. 

The  i«s;!incc  a  cominission  of  I>an!crupt  therefore  against  a  tenant,  and 
Vac  messenger's  jiossession  of  his  goods,  <loes  not  hinder  the  landlord 
from  distraining  for  rc;nt ;  but  while  npon  the  premises,  they  are  still 
ji;il)le  (a). 

iluney  paid  for  rent  to  a  landlord  who  was  about  to  distrain,  by  a 
trader  aft^r  an  act  of  bankruptcy  committed,  is  not  rccorerable  back 
by  tr.e  assignees  (^l/). 

The  landlord  may  dibtrain  tlic  goods  for  Ids  entire  debt,  even  after 
assiyiinient  orsaJo  by  the  assignees,  if  the  goods  are  not  removed  :  the 
reason  is,  because  no  provision  is  made  in  the  case  of  bankruptcy  by 
the  statute  (8  Jnn.  c.  11.)  which  gives  tlie  landlord  a  year's  rent  on  ex- 
ecutions (r). 

But  it  is  a  principle  tliat  a  landlorc?  has  no  lien  in  such  case  after 
tlie  goods  are  removed  from  the  premises  [d). 

Therefore  if  the  landlord  neglects  to  distrain,  and  suffers  the  goods 
to  !)3  sold  by  the  assignees  and  removed  from  oil'  the  premises,  he  can 
only  come  in  on  an  average  v.ith  the  rest  of  the  creditors  {r). 

Also,  if  landlord  prove  li is  debt  for  rent  under  the  commission  and 
swear  that  he  has  no  security,  he  thereby  waives,  it  should  seen),  his 
right  to  distrain  ;  and  the  vendee  of  sucli  goods  under  the  assignee  will 
be  entitled  to  the  goods  (/). 

So,  a  landlord  who  petitions  to  be  paid  the  rent  in  arrear  at  the  lime 
of  the  commission  being  taken  out,  seven  years  after  the  ehects  had 
been  sold  by  the  assignees,  was  considered  only  as  a  common  creditor, 
and  compelled  to  come  in/;ro  rata,  his  demand  being  a  stale  one  (g). 

A  mortgagee  who  has  paid  the  arrears  of  rent  on  a  b'ankrupt's  estate, 
unless  he  has  an  order  of  the  Court  of  Chancery  to  stand  in  the  land- 
lord's place,  shall  not  be  preferred  to  the  cretlitors  under  the  com- 
mission (A). 

Where  on  goods  being  sold  under  a  distress  for  rent,  a  balance  re- 
mained in  the  hands  of  the  constable,  the  tenant  or  his  representative 
could  only  come  in  for  his  proportion  with  the  other  creditors  :  if  any 
tldng  had  remained  in  specie  it  might  have  been  dlAerent,  but  in  this 
case  the  money  was  embezzled. 

Assignees  are  not  entitled  to  the  benefit  of  a  covenant  for  the  renewal 
of  a  lease  (/). 

The  commissioners  cannot  assign  a  lease  wherein  a  condition  is  con- 
tained, making  the  lease  void  on  the  tenant  committing  an  act  of  bank- 
ruptcy whereon  a  commission  shall  issue  :  for  such  a  proviso  is  legal, 
nnd  the  landlord  may  re-enter  by  virtue  thtreof  (A^). 

It  has  been  determined,  however,  that  the  commissioners  may  assign 

't:   1   Alk.  lOl.     _  (h)  5Esp.  200.  (c)  IbiJ.   103.  '0  Coo'.x's  ».  T;.  223. 

CO  1   Hro.  4:47.  1   Atk.  102,  103.  (f)  Ibid.   lOl.  {g)  ll,id.    lO:;.  (A)Ibi(lr 

(i>Z  Ve-i:.  9G.  (Ic)  2  T.  P..    133.  1.0  Xci    J.   2fifl. 


('Ii;i|>.  XIT.]  hi/    MarriniXr,  ^'f.  20/* 

a  lease  c^ranlcil  lo  ,i  l>.inkni|il,  in  w  liii  li  thtrc  is  a  j)r.i\  i>.)  Ili  »t  the  It^M-r, 
his  cxtriilors,  or  ailiniiiiitraloi^  .'•hull  iiolassiiiii  \vilhi»iil  tin  Ic-sor't.  con- 
eeiit  in  uriliiij;  (m). 

An  assipn'jc  of  a  hankrii  pt,  a  dcviMc,  and  a  jirrsima!  rcprosenlativc, 
and  one  who  purchases  a  term  from  tiic^lieriir  under  an  execution,  arc 
assij^iiees  in  law  to  llie  purpose  of  heini;  liable  to  actions  on  a  co\enaut 
for  rent  in  a  lease  to  the  hankrnpt's  devisor  or  intesiate  (A). 

Bdt  t!ie  assignees  of  a  l>an!«riipt  an-  not  liahle  for  thi  r;ut  of  premises 
assigiu'd  to  thcin  by  the  conuui^.'-ioiK  rs,  unhss  they  t  ii^:c  possr^sion  (■ ). 

Neither  are  the  assignees  lial>li-  to  an  action  of  covenant  for  p  nt  in  ar- 
rear,  accriu  d  sidisenucnt  to  the  bankruptcy  of  preniists  \\ljieh  had  bctn 
the  l)ankrnpl's  ((/). 

JJebl  on  the  reddendum  in  a  lease,  will  not  lie  ajjainsl  the  Ifssce  for 
rent  accrued  after  his  biinkriiptcy,  when  he  liad  ceased  to  occupy  the 
premises,  and  the  assis^nee  is  in  possession  under  the  commissioners'  as- 
signment (c ).  But  the  bankrupt's  lessee,  though  out  of  possession,  is 
eliil  lialjle  upon  his  covcnanl  to  pay  the  rent  (/}. 

'Whatever  doubt  may  have  been  at  one  time  entertained,  as  to  the 
bankruptcy  of  the  lessee  beini;  a  !)ar  to  an  action  of  covenant  l/roiiirht 
against  him  (/;),  it  is  now  settled  that  the  i)anl;riiptcy  of  the  defendant 
cannot  be  jjleaded  in  bar  to  an  action  of  covenant  for  rent ;  for  tlie  ;31« 
JI.  8.  c.  4.  s.  ].  only  a  signs  the  interest  of  the  bankrupt  in  the  land,  but 
does  not  destroy  the  privity  of  contract  between  the  lessor  and  lessee, 
uhercfore  an  action  of  covciumt  remains  after  the  estate  is  gone,  though 
generally  speaking  it  is  otherwise  of  the  action  of  debt.  Covenant  is 
foimded  on  a  privity  collateral  to  the  land  (//).  A  covenant  of  tlii^;  kiiul 
is  mixed  ;  it  is  partly  personal  and  paitly  dept-ndint  on  the  land;  it 
hiniis  bi.'lh  t!ie  jierron  and  t lie  land  :  aiul  tin's  l)riM-s  the  case  within 
the  j)rinciple  of  .i/r///.';r  v.  Staiard  (/),  (in  which  case  the  uirhim  of  Mr. 
J.  Yalci,  that  as  tlie  bankrupt  was  divested  of  his  w  Iiole  estate,  and  ren- 
dered incapable  of  perfornung  the  covenants,  it  would  l)e  a  hardsliip 
upon  liim  if  he  should  still  remain  liable  to  it,  when  he  is  disabled  from 
j>erforming  it,  was  clearly  extra-judicia!,  Ihongli  as  proceeding  from 
that  excellent  lawyer,  it  was  deserving  of  great  weight.) 

A  ri'jLlit  of  action  therefore,  on  a  breach  of  covenant,  mt  secured  by 
a  penalty,  and  where  the  daup.ges  are  to  be  recovered  are  imc.'rt.iin,  is 
not  barred  by  llie  cerlificate  of  the  dcfciulant,  who  bjcame  a  bankrupt 
after  the  covenant  was  broken  (/.-). 

Indeed,  it  is  extremely  clear,  that  wlierc  a  bankrupt  has  taken  a  Iea«c 
and  entf^rod  into  covenants  for  payment  of  rent  an  1  for  repairing,  See. 

it.i,.  ,;•  :.3:n.  AmWor,  »8o.  ft)  D.>ii«.  !B4.  (c  ;  1  K«p  R.  v^ix 

I        p'--C:i  i  ii   :;  n.  n  ni3.  '  («i)  l  Y^>.  \\.  283.  (t,  8  Koit,  aU.  in  nntf. 

I     1  ;iiti  I  '.u\  :a.  1 T  !t.  01.  (r  1  'J  II.  1^  (*)  \  H.  m  \y\ 

i"i  i!'.  ■■  .    c;;  a  Bur.  cwn,  "■  f.  T.  n.iio 


296  Of  Changes  happening  [Chap.  XII. 

though  the  lease  is  taken  from  hira  and  blended  with  the  general  mass 
of  his  property  and  divided  amongst  his  creditors,  yet  his  certificate  will 
iwt  deliver  him  from  liis  liability  to  perform  the  covenants  contained  in 
that  lease  («). 

Changes  hi)  Jnsolvencij. — Respecting  the  change  made  in  the  situa- 
tion of  landlord  or  tenant  by  the  insolvency  of  either  of  tlieni,  it  is  to 
be  observed  that  all  interests  in  lands,  and  chattels  real,  mu?t  be  insert- 
ed in  the  schedule  which  is  to  contain  an  enumeration  of  the  insolvent 
debtor's  estate  and  effects. 

A  conveyance  to  a  creditor  of  an  insolvent  de])tor's  estate  by  the 
clerk  of  the  peace  does  not  vest  the  estate  in  such  creditor  by  relation 
either  to  the  date  of  the  order  or  of  the  conveyance,  but  only  from  the 
actual  execution  of  such  conveyance  by  tlie  clerk  of  the  peace.  There- 
fore, such  creditor  cannot  recover  in  ejectment  upon  a  demise  laid  be- 
fore the  execution,  though  after  the  estate  was  out  of  the  insolvent 
debtor,  and  the  order  was  made  to  convey  the  same  to  the  lessor.  Had 
another  demise  by  the  clerk  of  the  peace  been  laid,  it  would  have  ob- 
viated any  inconvenience  which  could  have  arisen  in  this  case  from  the 
lessur's  ignorance  of  the  time  at  which  the  assignment  was  actually 
executed  (;'')• 

Where  there  is  a  bond  with  a  penalty,  and  also  a  deed  of  covenant, 
and  the  tenant  takes  the  benefit  of  an  Insolvent  Act,  whereby  the  bond 
is  discharged,  he  is  still  liable  on  any  future  breach  of  his  covenant ; 
unless  specially  saved  by  the  statute  (r). 

C  hanges  hij  Death. — The  alteration  that  is  effected  by  the  death  of 
the  landlord  or  tenant  has  reference  to  a  devisee,  or  an  executor  or  ad- 
niinisirator  ;  for  as  to  the  heir,  he  is  out  of  question,  as  such,  with  res- 
pect to  a  chattel  interest. 

By  the  statutes  32  and  3i  //.  8.  f.  1.  s.  5.  a  man  may  devise  all  his 
lands,  tenements,  and  hereditaments,  reversions  and  remainders. 

Therefore,  if  one  devise  a  reversion  after  an  estate  for  life,  or  in  tail, 
and  that  comes  to  his  possession,  the  land  passes  :  and  a  general  residu- 
ary clause,  in  a  will  carries  a  reversion. 

So,  by  a  devise  of  ground-rent  on  leases  for  j^ears,  tlie  reversion 
passes.  So,  a  bequest  of  "  leasehold  ground-rents  in  iS"."  passes  the  re- 
versionary leasehold  interest  as  well  as  the  reserved  rent  {(!). 

If  one  bequeath  his  indenture  of  lease,  his  whole  estate  in  the  lease 
passeth.  So,  if  a  termor  of  a  house  or  land  bequeath  the  same  to  B. 
M  ithout  expressing  how  long  he  should  have  it,  he  shall  have  the  whole 
term  and  number  of  years  (f ). 

Under  a  bequest  of  the  testator's  interest  in  leaseholds,  a  renewed 
lease  obtained  by  his  executrix  was  held  to  pass  (/).  But  a  renewed 
lease  docs  not  pass  uiider  the  words  "  lease  or  premises"  (g), 

(a)  7  T.  R.  eco.  (b)  2  East's  n.SST.  (e)  Doug.  93.  (d)  2  Str.  1020.   1  Br.  R.  7^., 

(e)  Went.  Ojr.  Ex.  2il.  </)  J5  Vet.  J.  236.  [gJ  J6  Ves.  J.  1S7,  199. 


Chap.  MI.]  by  Mdrrlaisr,  S^'r.  207 

0/  Driusrn,. — A  dcviVcc  of  tlu'  I.iiiiN  is  nititlofl  lo  all  Hiost  diiittcl 
inleresfs  which  hiioiig  lo  the  heir :  ami  in  one  ri^pcct  lie  lias  mi  ad\an- 
ta^c  to  which  the  ht'ir  is  not  entitled. 

Thus  it  has  Ihth  hoUlcri,  that  if  J.  soipcd  in  fee  of  lands  sow,  and 
devise  it  to  li.  for  lifi",  remainder  lo  ('.  in  fee,  and  die  before  scverancf , 
Ji.  fhall  have  tl»eeiiil)lenients,  and  not  the  cxtcutor  of  ./.  Or  that  if 
JJ.  die  hefore  severance,  his  exocator  shall  not  have  Ihtin,  but  they  shall 
go  to  iiini  in  remainder.  Or  that  if  the  devise  f)e  only  to  li.  and  B.  dier 
before  severance,  there  his  executor  Faall  have  them  (';). 

A  devisee  of  the  goods,  stock,  ami  nmvcahles,  is  entitled  to  growing 
corn  in  preference  both  to  the  devisee  of  the  land,  and  the  executor  {b), 

A  devisee  is  an  assii;nee  in  law,  ;ind  as  such  is  liable  to  an  action  on  a 
covtnant  in  a  lease  to  pay  rent,  or  on  any  other  covenant  that  runs  with 
the  land  (r). 

As  he  is  liable  to  covenants  that  rct^ard  the  reversion,  so  it  is  pir- 
sunied  he  is  capable  of  maintaining  an  action  for  the  breach  ol  such  co- 
venants ;  for  by  the  common  law,  upon  a  covenant  in  law  ,  the  assignee 
of  the  estate  shall  have  an  aclion  (f/). 

A  devisee  therefore,  is  in  the  predicament  of  an  ordinary  assignee,  by 
whom  an  action  lies  uj)on  every  covenant  that  concerns  the  land  ;  as  to 
pay  rent,  not  to  do  waste,  i^-c 

'i'lic  devisee  of  the  equity  of  redemption,  (the  lc£;al  c?talc  being  in  a 
)nortgaiz;ee)  is  not  liable  in  covenant  as  assignee  of  all  the  estate,  rij,iif, 
title,  and  interest  of  the  original  covenantor  (. ). 

An  action  of  covenant  <locs  not  lie  upon  the  stat.  of  3  //".  Si.  M.  < .  11. 
against  a  devisee  of  land  to  recover  daniagcs  for  a  breach  of  covenant 
made  by  the  ilevinnr,  but  llic  rejueiiy  thereby  given,  is  conhncd  to  cases 
where  debt  lies  (fj. 

I'.xcnitors  and  Administrators. — \\"i\\\  respect  to  executors  and  ad- 
ministrators, the  executor  or  administrator  shall  have  by  viilue  of  his 
executorship  or  adiKinistration,  all  the  chattels  real  and  personal  of  ihr 
testator ;  as  well  those  that  are  in  possession,  as  leases  for  years  (»f 
land,  rent, common,  or  the  like,  corn  growing  or  cut,  trees,  and  gi..s-  cut 
and  severed,  as  also  those  that  are  in  aclion,  as  rij,hl  and  inlcri.sl  of  ex- 
ecution upon  judgment,  statutes,  ^.c.  (if). 

So,  the  executor  or  administrator  of  the  lord  shall  have  the  fines  as- 
scssctl  upon  the  tenants  up-n  tiieir  admittances  in  the  lord's  iinie  {h). 

So,  if  I  make  a  Ica^e  for  life  rendering  rent,  and  the  rent  is  hebind, 
and  then  I  die  ;  in  this  case  the  arreara2;es  of  rent  due  to  me  in  my  jif;  - 
time  f-hall  go  to  my  executor  or  administrator  in  the  nature  of  a  chat-, 
tel  (/). 

(a)  Toll  I.,  of  Ex.  U  Ad.  157.  (h)  Ibid  (r)  Ooiix   184.  [i)  Coto.  Di;.  «i-. 

'•  CovciiBiit."[B.  3  J  f<1  8  F.au.  ♦ai.  (/>  7  t»»M:.'J.  f|)Sbi?   Touc^.«e3 

{K)  Ibid,  .    to  Ibid. 


298  Of  Changes  happening  [Chap.  XIL 

So,  if  a  rent  l)f  granted  out  of  land  to  me  in  fee-simple,  fec-lail,  for 
life  or  3'cars,  and  it  be  not  paid  to  me  in  my  liftlinie,  these  ar- 
rearaj^es  shall  go  to  my  executor  or  administrator,  and  not  to  any 
other  {a). 

So,  also,  if  a  parson  have  an  annuity  in  fee  in  right  of  his  church, 
and  it  be  behind  and  the  parson  die  :  in  this  case  the  executor  or  ad- 
ministrator, not  the  successor  of  the  parson,  shall  have  the  arrear- 
ages {b). 

If  I  be  seised  of  land  and  possessed  of  a  flock  of  cattle,  and  let  it  to 
another  for  years,  and  he  covenant  by  the  lease  to  pay  me  and  my  wife, 
our  heirs  and  assigns  100/.  per  ann.  during  the  term  ;  in  this  case,  after 
my  death,  and  my  wife  surviving  me,  her  executor  or  administrator, 
and  not  my  heir,  shall  have  this  payment  (r). 

So,  if  one  make  me  a  lease  of  land  first  for  y^ars,  and  then  grant 
me  the  trees  for  a  number  of  years,  to  begin  after  the  end  of  the  term 
of  the  land  ;  I  have  the  trees  in  the  nature  of  a  chattel,  and  if  I  die, 
my  executor  or  administrator  shall  have  them  (<:/). 

So,  if  a  lease  for  years  of  land  be  granted  to  me  and  my  heirs,  or  to 
me  and  my  successors,  and  I  die  ;  my  executor  or  administrator,  and 
not  my  heir,  shall  have  the  term  (e). 

The  same  law  is,  if  a  covenant  or  an  obligation  be  made  to  me  and 
my  heirs :  for  in  these  cases,  this  is  still  a  chattel  in  me  that  shall  go  to 
my  executor  or  administrator,  and  he  only  shall  take  advantage  of  it  : 
and  if  my  heir  or  successor  happen  to  get  the  deed,  the  executor  or  ad- 
ministrator may  recover  it  from  him  (/). 

If  a  lease  be  made  to  me  for  twenty  years,  without  naming  my  execu- 
tors or  administrators  or  assigns;  in  this  case,  if  I  die,  my  executor 
and  administrator,  notwithstanding,  shall  have  it  during  the  term  (^^). 

So,  if  a  lease  for  years  l^e  made  to  a  bishop  anil  his  successors,  and 
he  die,  his  executor  or  administrator,  not  his  successor,  shall  have  it  (A). 

If  the  lessee  for  life  make  a  lease  for  yfars  absolutely,  this  in  law  is  a 
lease  for  so  many  years  if  the  life  so  long  live,  and  shall  go  to  the  execu- 
tor or  adnunistrator  after  his  death  (/). 

In  the  case  of  a  tenancy  from  year  to  year  as  long  as  both  parties 
please,  if  the  tenant  die  intestate,  his  administrator  has  the  same  in- 
terest in  the  land  which  his  intestate  had  :  for  whatever  chattel  the  in- 
testate had  must  vest  in  his  administrator  as  his  legal  representative  (A). 

The  charters  and  evidences  that  concern  any  of  my  chattels  which 
my  executor  or  ad  mini'^trator  is  to  have,  shall  go  with  the  same  chattels. 
—So  also  any  charters  whatsoever,  if  they  be  pledged  to  me  for  money, 
;?hall  go  to  my  executor  or  aduiinistrator  until  the  money  be  paid  (/}. 

(a)  Sliep.  Toucli.  4Ga.  {b)  Ibid.  469.  (c)  lliid.  {<!)  Ibid.  (<)  U>iiJ 

if)  Ibid.  (g)  Ibid.  470  (A)  Ibid.  W  Ibid.  (kj  3  T.  R.   16. 

(.1)  Shep.  Toucli.  4G9. 


Clinj).   \n.]  hy   Miiniii'j:i\   S'r.  200 

'i'hose  deeds  arid  evidences,  that  helniii;  to  the  heir  as  incideiil  lo 
the  inhciitanoe,  shall  not  ;^(»  to  exrculor  t»r  udininlstratur  (a). 

The  executor  or  udininistrator  shall  not  have  the  grass  and  trees 
growini;:  on  the  ground,  no  more  than  llie  soil  or  ground  itself  whereon 
I  hey  tjrow  {!>.) 

Xeithi  r  is  an  a<lnnnistrator  or  exeentor  enfilled  lo  p  des,  walls, 
sJalks,  fi'-h  in  i)(»nds,  deer,  or  conies  in  parks,  pigeons  in  pigeon-houses, 
or  Ihe  like  (r). 

If  a  lease  be  maile  f(jr  life  or  years,  of  land,  whercoit  a  house  is 
standing,  or  timber  is  growing,  and  the  house  is  prostrate  or  llie  tim- 
ber is  cut  or  fallen  down  (by  whonjsoever,  or  by  what  njeans  soever  it 
be  ;)  the  materials  of  this  house  and  this  timber  arc  now  Ijccomea  chat- 
tel :  and  therefore,  if  the  lease  be  w  iliiont  impeachment  of  waste,  it 
sliall  go  to  the  Ie«oe,  and  after  his  death  to  his  executor  or  adminislra- 
(nr  ;  bii(  if  Ihc  lease  be  otherwise,  it  shall  go  to  tlic  lessor,  and  after 
Jiis  death  lo  !iis  executor  or  adminislralor. —  Hnt,  if  the  timber  be  cut 
for  reparation  only,  or  tlie  lessee  will  employ  tiie  materials  of  the 
house  to  build  it  again,  and  the  lease  continue,  it  may  be  so  em- 
ployed, antl  then  the  executor  or  administratoi-  of  the  lessor  may  not 
take  it  {d). 

An  exfcutoror  administrator  regularly  shall  cliarge  others  for  any 
debt  or  duly  due- to  the  deceased,  as  the  deceased  Ijimself  mii;ht  liavc 
done  ;  and  the  same  actions  which  the  deceased  mi;;ht  have  had,  the 
same  actions  for  the  most  part  the  executor  or  administrator  may  have 
also  (<"). 

Therefore  he  may  have  an  action  of  account,  upon  the  case,  or 
assuwpsil,  for  use  and  occupation  of  his  testator's  or  the  intestate's 
jjremiscs  (./"). 

So,  an  action  of  ejectment  will  lie  by  the  executor  or  administrator 
for  an  ejectment  of  the  testator  out  of  a  term  (q). 

An  action  of  debt  also,  for  rent  behind  in  the  lifelime  of  the  de- 
ceased, may  be  brought  by  his  executor  or  administrator  (//)  ;  for 
if  any  r(  nt  or  arrearages  of  rent  be  due  to  me  upon  a  grant  of  rent 
out  of  my  land  to  me,  or  reservation  of  rent  upon  any  estate  made 
by  me  of  Ian. I  ;  in  these  cases,  my  executor  or  administrator  may 
liave  an  action  of  debt  for  this  rent,  or  he  may  distrain  for  it,  so  long  as 
the  land  that  is  chargeable  with  the  rent,  and  out  ol  which  it  issues, 
is  in  his  possession  that  ought  to  pay  it,  or  in  lh(  possession  of  any 
one  that  claims  by  or  under  him  (/). 

As  a>i  executor  or  admiruslralor  shall  regularly  char-i;  otlurs  for  any 
debt  or  duly  due  to  the  deceased,  so  shall  he  be  charged  by  others  far* 

f<t;  «  T    K  iJl'.  kl  01    Com.  119.  3  Vcj   J.  srs.  ,4)  Shep.  Toi:rh   ISJ  ft)  IhU. 

{d)  Kid  4T!  .e.  ll»i<l  4ei-  C/>  IW<1  ?;Siipp.  Tourh.  1%: 

(S)  IWJ.  "     !,>  Shep    Toijih,  v: 


300  Of  Changes  happening  [Chap.  XII. 

any  debt  or  duty  due  from  the  deceased,  as  the  deceased  himself  mi^ht 
have  been  charged  in  his  lifetime,  so  far  forth  as  he  hath  any  of  the 
estate  of  the  decease<l  to  discliarge  the  same  (a). 

Therefore,  if  a  lease  for  years  he  made  rendering  rent,  and  the  rent 
is  behind,  and  the  lessee  die  ;  in  this  Case  tlie  executor  or  administrator 
of  the  lessee  shall  be  charged  for  this  rent  (y). 

So,  also,  if  a  lessee  for  years  assign  over  his  interest  and  die,  his 
executor  or  administrator  shall  be  charged  with  the  ari'earages  bt^fore 
the  assignment,  but  not  with  any  of  the  arrearages  due  after  the  as- 
signment (i). 

For  if  the  testator  die  in  possession  of  a  term  for  years,  it  shall  vest, 
as  before  mentioned,  in  Vac  executor  ;  and  although  it  be  worth 
nothing  lie  cannot  w  aive  it,  for  he  must  renounce  the  executorship  in 
toio,  or  not  at  ail  («-/).  But  tiiis  is  to  be  understood  only  where  the 
exf.'cutor  has  assets,  for  he  may  relinquish  the  lease,  if  the  property 
be  insufficient  to  pay  the  rent  ;  but  in  case  there  are  assets  to  bear  tlie 
loss  for  some  years,  though  not  during  the  whole  term,  it  seems  the 
exrcntor  is  bound  to  continue  tenant  till  the  fund  is  exhausted,  when, 
on  givin;£;  notice  to  the  lessor,  he  may  waive  the  possession.  If,' 
however,  he  enter  on  the  demised  premises,  as  by  his  office  he  is 
bound  to  do,  the  lessor  may  charge  him  by  action  of  debt  as  assignee 
in  the  debet  and  detiiut  for  the  rent  incurred  subsequent  to  his 
entry  [c). 

If  the  profits  of  the  land  exceed  the  amount  of  the  rent,  as  the  law 
prima  facie  supposes,  such  of  the  profits  as  are  sufficient  to  make  up 
the  rent  shall  be  appropriated  to  the  payment  of  the  lessor,  and  cannot 
be  applied  to  any  other  purpose.  Tnercfore,  if  in  such  case  the  lessor 
bring  an  action  against  the  executor  for  the  rent,  he  cannot  plead /j/(?//ff 
admlnistravit,  for  that  plea  would  confess  a  misapplication  of  the  pro- 
fits ;  since  no  other  payment  out  of  them  can  be  justified  till  the  next 
be  answered  {J  ). 

On  the  other  hand  the  profits  of  the  land  may  be  inadequate  to  the 
rent.  In  a  variety  of  cases,  they  may  l)e  easily  supposed  insufficient 
for  a  given  period,  although  the  lease  may  on  the  whole  be  beneficial  : 
as  in  respect  to  rent  for  the  occupation  of  premises  from  Michaelmas  to 
Lady  liaij  especially,  where  almost  the  whole  profit  is  taken  in  the 
sr.mmer  ;  as  in  the  case  of  a  lease  of  tithes,  or  of  meadow  grounds, 
which  are  usually  iloodcd  in  the  winter.  So,  the  profits  for  a  series  of 
years  may  be  less  than  the  amount  of  the  rent,  although  the  lease  for 
the  whole  term  may  he  of  no  small  value  ;  as  in  the  case  of  a  lease  of 
Moods,  which  are  fellable  only  once  in  eight  or  nine  years,  and  the 
felling  has  been  very  recent  (i,-")- 

(a)  Fliep.  Touch.  482.  ft)  Ibid.  403.        {c)  Ibid.  (.(2}  Toll.  L.  of  Ex.  St  Ad   109 

(c;  Went.  Oir.  cf  Kx.  120.  (/}  Toll.  I,,  of  i;s.  8j  Ad.  C:0.  (.s)  Ibid. 


Cliap.  XTT.]  by  Mirriaii;e,  Ss'c.  301 

In  these  and  flic  Ii!;r  instances,  llic  executor  is  personally  liable  only 
to  the  ejtteiit  of  the  profit*;,  and  for  such  proporliun  of  the  rent  n^ 
ihall  exceed  the  |)ro(its,  is  chari;eal)lc  merely  in  the  capacity  of  exe- 
cutor, or,  in  other  words,  as  far  only  as  he  lias  assets:  and  in  .such 
cise,  to  an  action  l}rougJit  by  the  lessor  atjainst  him  in  the  debet  and 
detinct,  he  must  disclose  the  matter  by  special  plead inj;,  and  pray  judg- 
nvnt  wlutlKr  he  shall  be  clurgcd  otherwise  than  in  the  ddinct  only, 
for  more  than  the  actual  prolits  (a). 

Thus  liie  pndits  of  the  land  are  to  bo  applied  by  tlie  executor,  in 
the  first  place,  to  flic  discharge  of  the  rent,  and  if  that  fund  prove  in- 
sufficient, the  residue  of  the  rent  is  payable  out  of  the  general  assets, 
and  stands  on  the  same  footing  w  itii  other  (Iel>1s  by  specialty : 
and  this  ^\Jietlier  tlie  rent  reserved  be  by  lease,  in  writing,  or  by 
parol  (A). 

Hut  an  executor  or  administrator  shall  not  charge  another,  or  have 
any  action  against  him  for  a  personal  wrong  done  to  the  testator, 
when  the  wrong  done  to  his  person  or  that  which  is  his,  is  of  that 
nature  as  for  which  damages  only  arc  to  be  recovered  ;  therefore^ 
an  executor  or  administrator  cannot  sue  another  for  a  trespass  done 
to  him  in  his  cattle,  grass,  or  corn,  or  for  waste  done  by  his 
tenant  in  his  lands;  for  fiiese  arc  said  to  be  personal  actions  Mh.ich 
die  \s  ith  the  person,  according  to  the  rule,  actio  personalis  moritur  cud: 
persona  (r). 

So,  an  executor  or  administrator  sliall  not  be  cliargcd  for  any  per- 
sonal wrong  done  by  the  deceased,  and  therefore  no  action  may  be 
brought  against  him  for  any  such  cause  ;  as  for  cutting  down  trees,  or 
for  suJlering  his  cattle  to  eat  np  the  plaintifT's  grass  (</). 

An  action  for  use  and  occui)ation  by  the  deceased,  however,  may 
perhaps  be  maintained  against  his  executor  or  administrator. 

Touchingthe  cases  in  which  executors  or  administrators  are  affected 
by  the  covenants  made  by  or  in  favoiu'  of  their  testators  and  intestates. 
An  action  for  the  breach  of  a  covenant  made  to  the  deceased  lies  for 
an  executor  or  administrator;  so,  for  a  covenant  broken  in  the  life- 
time of  the  testator,  the  executor,  and  not  the  heir  or  assignee, 
shall  have  the  action  of  covenant  {r),  although  (it  is  said)  it  were  a 
covenant  real,  (a.s  to  use  the  land  in  an  husbanilman-lil;e  manner), 
which  runs  with  the  land;  and  the  damages  shall  be  recovered 
})y  the  executor,  though  not  named,  as  he  personally  represents  the 
testator  (/). 

Yet  where  the  IcRsee  covenanted  to  repair,  and  to  leave  the  premises 
in  repair,  it  was  held  (in  a  case  long  prior  to  that  la.t  ({uoted  from 
Esp.  N.  P.J  that  the  heir  should  have  an  action  of  covenant  on  this. 

(a)  Toll.  1,   of  Kx    i.  Ad.  2:n.  ^t;  lb,.l.  (t)  Shep   Touch.  4C1         •-''  V.n\    n 

.'r;  Sliep.  Toiicli  ml.    :i  Lev.  ?«.    Vent  17J.  f/^  FT-  X   »',  -'•>• 

40 


302  Of  Changes  happening  [Cliap.  XII. 

though  not  named  :  for  it  was  a  covenant  which  runs  with  the  estate, 
and  £0  should  go  with  the  reversion  to  the  heir  (a). 

The  distinction  taken  (if  any  subsists)  is  perhaps  by  reason  of  the 
one  injury  not  savouring  of  waste,  and  the  other  savouring  of  waste  ; 
for  remedies  for  waste  regard  the  reversion,  and  therefore  lie  with  the 
heir  ;  or  it  may  be  that  the  remedy  for  breach  of  covenant  to  repair  is 
given  to  the  heir,  because  his  personal  comfort  and  convenience  are 
abridged  by  such  a  breach,  which  cannot  occur  to  one  deceased  ; 
whereas  a  covenant  to  use  land  in  a  husbandman-like  manner,  and  to 
leave  it  in  such  condition,  regards  rather  the  temporal  interest  than  the 
personal  comfort  of  the  covenantee. 

Executors  shall  also  have  a  writ  of  covenant  of  a  covenant  made  to 
their  ancestors  for  a  personal  thing.  Yet  according  to  The  Touchstone 
where  the  covenant  is  but  personal,  as  where  one  makes  a  lease  for 
years,  and  the  lessor  covenants  to  pay  the  quit-rents,  but  he  does  not 
say  during  the  term,  by  this  it  seems  the  executor  or  administrator  of 
the  lessor  shall  not  be  charged  (6). 

If  the  lessor  covenants  « ith  the  lessee  to  make  him  a  new  lease  at  the 
end  of  his  term,  and  the  lessee  dies,  his  executor  may  have  covenant 
on  this,  though  not  named  (c). 

Executors  or  administrators  who  come  to  any  term  of  lands  or 
tenements,  as  such,  are  bound  by  the  covenants  which  run  with 
the  estate,  as  belonging  to  the  personal  property  of  the  testator  or 
intestate  (d). 

Where  lands  come  to  an  executor  or  administrator,  he  may  be 
charged  for  a  breach  in  his  own  time,  as  for  non-payment  of  rent,  or 
with  an  action  of  covenant,  either  in  that  right  or  as  assignee ;  but 
there  is  this  difference  (e).  If  declared  against  as  assignee,  he  is 
chargeable  as  ter-tenant,  or  one  who  hath  the  actual  possession  of 
the  land,  and  the  judgment  is  de  bonis  propriis  {/)■  But  if  the  action 
be  brought  against  him  as  executor  or  administrator,  the  judgment 
shall  be  de  bonis  tcstatoris,  even  where  the  breach  has  been  committed 
in  his  cwn  time,  as  for  repairs,  &c.  for  it  is  the  testator's  covenant 
which  binds  the  executor,  as  representing  him,  and  he  therefore  must 
be  sued  by  that  name  (5-). 

Covenant  lies  by  the  lessor  against  the  administrator  of  the  assignee 
of  the  lessee,  against  whom  he  may  declare  as  assignee,  for  breach  of  a 
covenant  that  runs  with  the  land  (/<). 

If  a  covenant  by  two  lessees  be  joint  and  several,  it  shall  bind 
the  executors  of  the  deceased  lessee,  even  though  he  died  before  the 

(a)  2 Lev.  92.  Skinn.  SOS.  s.  c.  1  Salk.  Ul. 
(6)  VWi.  Nat.  Brev.  >45.  [D.j  Bro.  tit.  "Coveuant."  la.  Sliep.  Touch.  432. 
(e;  Plowd.  Con.  28G.  (d)  Hob.  188.   10  Moil.  [12.]   1  Salk.  37.  b.  c.  (t)  1  Wils.  4. 

if)  1  halk.JO  .  ♦?;  '.bid.  Hob.  lau.  Cro.  Jac.  67).  (h)  Hull.  ^•.  P.  159.  E--i..  Iv .  P.  2!)0. 


Chap.  XI I.J  In/  Murr'umcy  cS%;.  30;j 

tcini  conimcncrd,  ami  the  whole  term,  interest  and  benefit  survive  to 
the  other  lessee  (<()• 

If  a  man  coveiiiiiit  for  himself  only  to  pay  money,  build  a  house  for 
quiet  cnjoyini;,  or  the  like,  and  he  doth  not  say  in  the  covenant  "  his 
executors  and  ailministrators,"  yet  hereby  his  executors  and  admini- 
strators are  bound  ami  shall  be  charged  [b). 

WX  if  a  lessee  for  yeras  covenant  for  himself  to  repair  tiie  houses 
demised,  omitling  other  \\orils,  it  seems  in  this  case  he  is  bound  to 
repair  only  during  his  life,  and  the  executors  and  ailministrators  are  not 
bound  (r ). 

liut  ujion  a  covenant  implied,  an  action  of  covenant  (it  is  said)  uill 
not  lie  against  an  executor  ((/). 

'nj  S  Uiir.  1I?7.  (A;  fill*)..  Toiicli.  172.  'c)  Ibid.  (d>  ItiJ. 


r     304     J 


CHAPTER  XIIT. 


Of  the  Rtmedies  for  and  against  Landlord  and  Tenant. 

First.     Of  Remedies  for  Landlord  for  Recovery  of  Rent, 

Section  I.      By  Distress ;   wherein  of  Pound-Breach  and 
Rescue. 

Section   II.    Action   of    Debt;    where    the   Lease   is   hy 
Deed. 

Section  III.     Covenant ;  ivhere  the  Lease  is  hy  Deed. 

Section  IF.    Debt,    or  Assumpsit;  for    Use   and  Ocen^ 
pation. 

Section  I.    Landlord's  Remedy  for  Rent  by  Distress. 

OF  the  various  remedies  which  the  law  affords  to  the  landlord  for 
the  recovery  of  rent  from  his  tenant,  that  by  distreess,  as  being 
the  most  ancient,  and  one  most  summary  in  its  nature,  and  therefore 
most  commonly  resorted  to,  first  claims  our  consideration. — It  is 
recommended,  in  preference  to  others,  by  Lord  Coke,  as  the  most 
plain  and  certain  ;  and  the  statute  2  IF.  3.  sess.  1.  c.  5.  recognizes 
it  as  "  the  most  ordinary  and  ready  way  for  recovery  of  arrears  of 
rent  "(a). 

Distress  rvhat. — A  distress,  districtioy  is  the  taking  of  a  personal 
chattel  out  of  the  possession  of  the  wrong  doer  into  the  custody  of 
the  party  injured,  to  procure  a  satisfaction  for  the  wrong  committed. 
The  thing  itself  taken  by  this  process  is  also  frequently  called  a  dis- 
tress (Z*). 

Lies  for  what? — A  distress  is  not  an  action,  but  a  remedy  without 
suit,  ^^c.  and  was  a  remedy  given  to  the  lord,  to  recover  the  rent  or 
services  which  the  tenant  had  obliged  himself  by  his  feudal  contract  to 

(p)  Go.  Lit.  1C2.  b.  (h)  3  E).  Com.  C, 


Sect.  I.]  Jicmcdyfor  Rent  hj  Distress.  305 

pay  by  way  of  retribution  for  lii^  (".inn  ;  for  rnil  is  ronsidcrtd  as  ;i 
retribution  fur  the  J.iiul,  ami  is  therefore  i)ayal)le  lo  those  who  would 
otherwise  have  Iiad  the  land  (a). 

For  all  services  a  distress  may  l)e  made  of  common  ri^ld  ;  for  dis- 
tresses were  incident  by  the  cummon  law  to  every  rent-service,  and  by 
particular  reservation  to  rent  rhari;es  also,  l)ut  not  to  rent-seek-,  till 
the  Stat.  1  (i.  2.  r.  2S.  extended  the  same  remedy  to  all  rents  alike, 
and  thereby  in  Ciicct  abolished  all  material  distinction  between 
them  (b). 

So  that  now  we  may  lay  it  down  a?  p.n  universal  jirincipie,  that  a 
distress  may  be  taken  for  any  kind  of  rent  in  arrear  ;  the  detention 
where  of  beyond  tlie  day  of  payment  is  an  injury  lo  him  that  is  entitled 
to  receive  it  (r). 

Jit/  nhom  Distress  mat/  be  made. — Therefore,  if  a  person  seised  in  fee 
grants  out  a  lesser  estate,  saving  the  reversion  of  rent,  or  other  services, 
the  law  gives  him,  ^\  ithout  any  express  provision,  remedy  for  such  rent 
or  services  by  distress  [d). 

Hut  for  a  rent  wliich  issues  out  of  an  incorporeal  inheritance,  the 
reversioner  cannot  distrain  ;  as  if  I  have  a  right  of  common  in  another 
man's  soil,  and  I  grant  it  to  A.  reserving  rent,  if  the  rent  be  l)ehind, 
I  cannot  distrain  the  beasts  of  A.  because  that  the  right  of  common, 
uhich  every  man  has,  runs  through  the  w  liolc  common. — The  king 
however  is  an  exception  to  tliis  rule,  for  he  by  liis  prerogative  can  dis- 
train upon  all  the  lands  of  his  lessee. 

So,  a  man  cannot  distrain  for  rent  issuing  out  of  tithes,  because  there 
is  no  place  wliere  the  distress  can  be  taken. 

A  person  who  has  not  the  reversion  cannot  distrain  of  common 
right;  but  he  may  reserve  to  liimself  a  power  of  distraining,  or  the 
reservation  may  be  good  to  bind  the  lessee  by  way  of  contract, 
for  the  performance  whereof  the  lessor  may  have  an  action  of 
debt  {(). 

Thus  if  the  assioince  of  a  term  surrenders  to  tlic  original  lessor, 
though  he  reserves  a  sum  in  gross  to  l)e  paid  annually,  he  cannot  dis- 
train for  that  or  the  original  rent,  but  he  may  have  an  action  of  assump- 
sit for  such  sum  in  gross  (/). 

So,  if  a  lessee  for  years  assign  his  term  rendering  rent,  he  cannot  dis- 
train for  it  witliout  a  particular  clause  for  that  purpose,  because  he  has 
no  reversionary  interest ;  the  only  rcjne  ly  that  Die  assignor  has,  is  by 
an  action  on  his  contract. 

If  under  an  agreement  for  a  lease  at  a  certain  rent  the  tenant  is  let 
into  possession  before  the  ha.-e.  is  executed,  the  lessor  cannot  during 

(n,  Oilb.  L.  of  r>iii  "    <\    in  .".   Toai.  Dir.  •;'  "  I)i<lrp>«  "  f  A    I  J 

fclsBI.  Com.  6.  .;  t         1 

'   (a:h.  L.  nflXi-.  '  ;;    .. 


306  Remedy  for  Rent  by  Distress.    [Chap.  XIII. 

the  first  year  distrain  for  rent;  for  there  is  no  demise  express  or  im- 
plied (rt). 

A  dfcvipee  may  distrain  for  rent  devised  to  him  out  of  the  lands,  if 
the  land  is  charged  with  a  distress,  and  not  otherwise. 

For  a  rent  granted  for  equality  of  partition  by  one  coparcener  to 
another,  or  for  a  rent  granted  to  a  widow  out  of  lands  whereof  she  is 
dowahle  in  lieu  of  dower,  or  for  a  rent  granted  in  lieu  of  lands  upon 
an  exchange,  the  grantee  may  distrain  without  any  provision  of  the 
j'arlies,  though  he  has  no  reversion  ;  the  law  giving  him  a  distress  in 
these  cases,  lest  the  grantee  should  be  without  remedy. 

i^ut  if  a  man  grants  rent  over  to  another,  after  arrearages  incurred, 
he  cannot  distrain  for  such  arrearages ;  because  they  are  by  the  grant 
divided  from  the  freehold  of  the  rent. 

If  a  person  enter  upon  certain  premises  subject  to  the  approbation 
of  the  landlord,  who  afterwards  does  not  approve  ;  but  upon  an  agree- 
ment that  the  tenant  will  pay  an  advanced  rent  as  well  for  the  time  he 
had  been  in  possession,  as  for  the  future,  the  landlord  was  willing  to 
let  him  continue  in  possession  :  in  such  case,  the  landlord  may  distrain 
for  the  advanced  rent  accrued  before  the  agreement  as  well  as  for  what 
accrues  afterwards,  such  agreement  giving  him  the  same  power  by 
relation  to  his  tenant's  first  entry  into  possession,  as  it  did  to  recover 
his  rent  in  future. 

So,  a  mortgagee,  after  giving  notice  of  the  mortgage  to  the  tenant 
in  possession,  under  a  lease  prior  to  the  mortgage,  may  distrain  for 
the  rent  in  arrcar  at  the  time  of  the  notice,  (although  he  was  not  in 
the  actual  seisin  of  the  premises  or  in  the  receipt  of  the  rents  and 
profits  at  the  time  it  became  due)  as  well  as  for  rent  Avhich  may 
accrue  after  such  notice  ;  the  legal  title  to  the  rent  being  in  the 
mortgagee. 

A  receiver  appointed  by  the  Court  of  Chancery  may  distrain  for 
rent,  where  he  sees  it  necessary,  and  need  not  apply  first  to  that  court 
for  a  particular  order  for  the  purpose  ;  because,  as  that  court  never 
makes  an  immediate  order,  but  appoints  a  future  day  for  a  tenant  to  pay, 
it  might  be  an  injury  to  the  estate  to  wait  till  that  time,  as  it  would 
give  the  tenant  an  opportunity  to  convey  his  goods  off  the  premises  in 
the  mean  time. — If,  however,  there  is  any  doubt  who  has  the  legal 
right  to  the  rent,  then  the  receiver  should  make  an  application  to  that 
court  for  an  order  ;  as  he  must  distrain  in  the  name  of  the  person  who 
has  that  right. 

One  joint-tenant  may  distrain  alone  ;  but  then  he  must  avow  in  his 
own  right  and  as  bailiff  to  the  other  {b). 

One  tenant  m  common  may  distrain  for  his  share  of  the  rent  upon 

'n)  2  Taunt.  U8.  (*;  6  Mod.  73.  150.    3  Salk.  287. 


Sect.  I]  Remedy  for  Unit  hi)  Dislnss.  307 

the  terre-tenant  hol'Iini^  un(!cr  him  and  another  tenant  in  cmnnum, 
uhcre  such  terre-tcnuiit  has  paiil  the  \\holc  rent  to  the  other  tenant  in 
common  after  notice  not  so  to  pay  it  («). 

A  man  may  distrain  cattle  without  any  express  anthority,  and  if  he 
obtain  tlie  assent  of  tlie  person  in  whose,  rli^lit  lie  ilid  distrain,  his 
assent  will  be  as  cJlectual  as  his  command  ef)nlil  have  heen  ;  for  such 
assent  shall  have  relation  to  the  time  of  the  distress  taken  (/<). 

By  the  common  law  the  executors  or  administrators  of  a  man  seised 
of  a  rent-service,  rent-chari^e,  rent-scci<,  or  a  fee-farm,  in  fee-simple, 
or  fee-tail,  could  not  distrain  for  the  arrearages  incurred  in  the  lifetime 
of  the  owner  of  such  rents. 

It  was,  therefore,  enacted  hy  stat,  32  //.  8.  r.  37.  s.  i.  That  the 
executors  and  administrators  of  tenants  in  fee,  fee-tail,  or  for  term  of 
life,  for  rent-services,  rent-charges,  rent-seek,  and  fee-f;irm=,  may 
distrain  njion  tlie  lands  charj^eable  with  the  payment  there(jf,  so  Ions;- 
as  such  lands  remain  in  the  possc::sion  of  the  tenant  who  ought  to 
have  paid  such  rent  or  fee-farm,  or  of  any  other  person  claiming  under 
him  by  purchase,  gift,  or  descent. 

By  section  3.  of  the  same  statute  it  is  enacted,  that  if  a  man 
hath  in  right  of  his  wife  any  estate  in  fee-simple,  fee-tail,  or  for  term  of 
life,  or  of  or  in  any  rents  or  fee-farms,  and  the  same  rents  or  rec.-f:irms 
shall  be  due  and  unpaid  at  the  death  of  his  wife,  such  husband  may 
distrain  for  the  said  arrearages  in  the  same  iMnnner  us  if  his  wife  had 
been  living. 

By  section  I-,  it  is  enacted,  That  if  any  person  h  ivc  such  rents  or 
fee-farms  for  term  of  life  or  lives  of  other  persons',  he,  his  executors  or 
administrators,  may  distrain  for  arrearages  of  such  rent  incurred  at  the 
death  of  the  cestui  (jnc  vie.,  in  the  same  manner  as  if  such  <  rstu'i  <iuc  vie 
had  been  still  livinc:. 

This  statute  is.a  remedial  law,  and  extends  to  tlir  ex^rutors  of  all 
tenants  for  life,  as  well  to  those  executors  who  before  tlie  statute  were 
entitled  to  an  action  of  debt,  as  to  those  v. ho  had  no  remedy  what- 
ever (r) :  so  that  Lord  Coke's  idea  that  the  ))rcamblc  concerning  the 
executors  and  administrators  of  tenant  for  life  is  to  be  l^dende<l  of 
tenant  pur  aider  vie  so  long  .is  cestui  f/ue  vie  lives,  sceni:;  to  be  too 
narrow  (<-/). 

But  where  a  tenant  for  lite  of  a  rent-charge  confessed  a  Jiidgmcnt 
which  was  extended  by  elegit,  and  the  tenant  for  life  dying,  the  comisee 
distrained,  and  in  replevin  avowed  for  the  arrears  incurred  in  the  life- 
time of  the  tenant  for  life,  upon  denmrrer  the  di^tre^■5  was  holilen  to  bo 
bad  and  not  warranted  by  the  statute :  first,  because  the  case  of  the  co- 
fa)  5  T.  n.  2ifi.  (t)  Oilb.  I>  of  nist  rii 
>)  1 1,().  "■>.•"    •-?     ■•>■"■•'     ';'•"  ,''   (""  I''  •"■?  h. 


308  Remedy  for  Kent  h\j  Distress.  [Chap.  XIII. 

nusee  is  not  enumerated  in  it ;  secondly,  because  he  comes  in  in  i\i(iposty 
and  not  under  the  tenant  for  life  (rz). 

Neither  is  the  executor  of  a  grantee  of  a  rent-charge  for  divers  years, 
if  he  so  long  live,  within  the  statute  (b.) 

Lord.  Coke  says,  if  a  man  makes  a  lease  for  life,  or  a  gift  in  tail 
reserving  rent,  this  is  a  rent-service  within  the  statute  ;  from  whence 
it  may  he  inferred  that  he  thought  that  a  rent  reserved  upon  a  lease  for 
years  was  not  within  it,  and  I  apprehend  that  it  is  not ;  for  the  land- 
lord is  not  tenant  in  fe^,  fee-tail,  or  for  life,  of  such  a  rent,  and  it  is 
the  executors  of  such  tenants  only  who  are  mentioned  in  the  Act. 
However,  in  trespass,  where  it  appeared  that  the  defendant  had  dis- 
trained the  plaintiff's  goods  for  rent  due  to  his  testator  upon  a  lease  for 
years,  Lord  C.  J.  Lee  held  it  to  be  within  the  statute,  and  the  de-, 
fendant  obtained  a  verdict  (r). 

This  statute  does  not  extend  to  copyhold  rents,  but  only  to  rents  out 
of  free-knd  (d). 

What  things  are  distrainable. — With  respect  to  the  things  which  may 
be  taken  under  this  process,  a  distress  being  anciently  considered 
merely  as  a  pledge  in  the  hands  of  the  lord  to  compel  the  tenant  to 
pay  the  service,  or  perform  the  duty,  could  not  at  common  law  be 
sold,  but  was  to  be  restored  in  the  same  plight  to  the  owner  when 
such  service  or  duty  was  performed,  and  nothing  could  be  distrained 
unless  it  could  be  returned  in  specie  and  undamaged.  It  follows,  that 
money  cannot  be  distrained  unless  it  be  in  a  bag,  for  then  it  may  be 
identified  perhaps;  so  milk,  fruit,  k,c.  cannot  be  distrained;  nor,  till 
made  distrainable  by  statute,  could  hay  or  sheaves  of  corn  be  the  sub- 
ject of  a  distress,  unless  they  were  in  a  cart  {r). 

As  to  the  things,  however,  which  may  be  distrained  or  taken  in 
distress,  wc  may  lay  it  down  as  a  general  rule,  that  all  chattels  per- 
sonal arc  liable  to  be  distrained,  unless  particularly  protected  or  ex- 
empted (/). 

By  stat.  2  IV.  3.  c.  5.  it  is  enacted,  That  it  shall  be  lawful  for  any, 
having  arrear  of  rent,  to  seize  and  secure  any  sheaves  or  cocks  of  corn, 
or  corn  loose  or  in  the  straw,  or  hay  being  in  any  barn  or  granary,  or 
upon  any  hovel,  stack,  or  rick,  oi'  otherwise  upon  any  part  of  the  land 
or  ground  charged  with  such  rent,  and  to  lock  up  or  detain  the  same 
in  the  place  where  the  same  shall  be  found,  until  the  same  shall  be  re- 
plevied, or  sold. 

By  stat.  11  G.  2.  c.  10.  5.  8.  the  landlord  may  take  and  seize, 
as  a  distress  for  arrears  of  rent,  all  sorts  of  corn  and  grass,  hops, 
roots,   fruits,  pulse,    or  other    product   whatsoever,    growing    upon 

(n)  Bull.  X.  p.  5S-.  (h)  lljiil.  57,  (c)  Ibid. 

(M)  Yclv.  \?.y  .y)  Gilb.L.  of  Dist.  ai.Scpr  (/}  3  Bl.  Com  7. 


Sect.  I.]  liancdij  for  rent  hi/   Distress.  :U)0 

any  part  of  llic  csliitc  dcniiscd  ;  uiid  the  same  may  cut,  gallicr,  make, 
cure,  carry  and  lay  up,  when  ripe,  in  tlie  barns,  or  other  p.opcr 
place  on  tljc  premises  ;  and  if  thvre  should  be  no  barn  or  other 
place  on  the  premises,  tlien  in  any  other  barn  or  proper  place  which 
he  shall  procure,  as  near  as  may  be  to  the  premie  ;  and  in  con- 
venient time  api)raij^^e,  sell,  or  otherwise  dispofe  of  tiie  same  towards 
satisfaction  of  the  rent  and  of  the  chari^rs  of  such  distress,  appraise- 
ment, and  sale;  the  appraisement  thereof  to  he  taken  when  cut, 
gathered,  cured,  ami  made,  and  not  before  ;  provided  always,  (sec.  *.).) 
that  notice  of  the  place  where  such  distress  shall  be  lodged,  shall, 
in  one  week  after  the  lod^^ing  thereof,  be  given  to  the  tenant,  or  lift 
at  the  hi.'-t  place  of  his  abode  ;  and  that  if  the  tenant  shall  pay  or 
tender  the  arrears  of  rent  and  costs  of  the  distress  before  the  corn, 
AV.  be  cut,  the  distress  shall  cease,  and  the  corn,  ^-c.  be  deliver- 
ed up. 

The  tools  and  utensils  of  a  man's  tratic  cannot  1)C  distrained  while 
there  is  any  other  distress  on  the  premises,  or  even  while  they  are  in 
actual  use  :  therefore  the  axe  of  a  carpenter,  the  books  of  a  scholar, 
and  the  like,  are  not  distrainable  while  any  other  distress  can  be  had 
or  while  they  are  in  actual  use  (((). 

Thus,  in  trover  for  a  stocking-loom  which  had  been  distrained  for 
rent,  where  it  appeared  that  an  apprentice  was  using  the  loom  at  the 
time  it  was  taken,  the  Court  held  that  it  could  not  Ici^ally  be  taken 
while  the  apprentice  was  using  it. 

Kut  in  trover  for  three  tape-looms,  where  it  appeared  that  they 
had  been  distrained  for  rent,  because  there  was  no  other  sufllcient  dis- 
tress upon  the  premises,  the  Court  held  the  distress  good,  as  it  did 
ni)t  appear  that  the  looms  were  in  actual  use  at  the  time  tliey  were 
taken. 

i.est  this  rule,  however,  should  be  carried  so  far  as  to  privilege  tlie 
sheep  of  the  tenant,  and  the  beasts  of  the  pIoiii;h,  (they  beim^  the 
materials  of  husl)andry,  to  plough  and  manure  the  land),  and  by  that 
means  the  landlord  be  totally  disai)pointed  of  the  rents,  this  nia1t(  r  has 
been  settled  by  the  statute  dc  districtioiie  sraccarii,  51  //.  3.  at.  i.  w  hkh 
is  in  allirujance  of  tke  common  law,  aiid  enacts  that  no  man  shah  be 
distrained  by  the  i)easts  of  his  plough  or  his  sheep,  either  by  Ihe  king 
or  any  other,  while  there  is  anot!i<'r  sulHcienl  distress ;  UnUss  indeed 
for  damage  feasant,  in  which  case  tlie  thing  that  does  the  trespass  mu::t 
make  compensation. 

Note.  In  an  action  on  the  above-mentioned  statute,  it  is  not  ir.cis- 
sary  to  shew  that  there  was  a  sufhcienl  distres.*,  pntter,  Sec  but  it 
T«u^l  come  en  the  other   part,  viz.  to   plead  that  there  w;-.b  noi  a 

'a;.Gilb.  L.  of  Di«t.  36.  Uc. 

41 


310  Hcmcdij  for  rent  hi/  Distress,       [Chap.  XIII. 

t-uflicieiit  distress,  prater,  &c.  It  must  be  intended  that  there  was 
cattle  SLiflicicnt  at  the  time  of  the  distress,  and  it  is  not  material  what 
>vas  before  or  after. 

Tlie  rcile  of  the  common  law,  which  exempts  utensils,  tools,  instru- 
mints  of  husbandry,  &c.  from  distress,  has  been  adjudged  to  hold 
as  to  distresses  for  rent  arrear,  amerciaments,  <*rr.  not  for  poor's  rates, 
^<c.  wliicli  are  out  o-f  present  consideration,  and  are  noticed  in  Chap. 
Vlll.  Src.  III. 

The  general  rule  of  law  is,  that  all  things  upon  the  premises  are 
liable  to  the  landlord's  distress  for  rent,  whether  they  be  the  effects  of 
a  tenant  or  of  a  stranger;  because  of  the  lien  which  the  landlord  has 
au  them  in  respect  of  the  place  u  here  the  goods  are  found,  and  not  i» 
respect  of  the  person  to  whom  they  Ixilong. 

But  this  rale  has  many  exceptions  in  favour  of  trade,  to  protect  the 
goods  of  third  persons  which  happen  to  be  upon  the  tenant's  premises 
in  the  way  of  his  trade  ;  therefore  things  sent  to  public  jMaces  of  trade, 
as  cloth  in  a  taylor's  shop,  yarn  in  a  weaver's,  a  horse  in  a  smith's^ 
and  the  like,  are  not  distrainable. 

A  gentleman's  chariot  standing  in  a  coach-house  belonging  to  a  li- 
very-stable keeper,  is,  it  seems,  liable  to  a  distress ;  for  that  there  i« 
not  a  shadow  of  real  claim  to  the  exemption. 

But  if  a  horse  goes  with  yarn,  ^^c.  to  a  weaver,  5cc.  or  fetches  yaru 
from  thence  and  carries  it  to  a  private  house  to  be  weighed,  and  it  is 
himg  there  till  the  yarn  be  weighed,  neither  the  horse  nor  yarn  can  be 
distrained. 

So,  a  horse  that  brings  corn  to  market,  and  is  put  into  a  private 
yard  while  the  corn  is  selling,  cannot  be  distrained  ;  because  the  bring- 
ing of  the  corn  there  is  in  the  way  of  trade,  and  consequently  of  public 
benefit. 

So,  goods  in  the  possession  of  a  common  carrier  are  protected  from 
distress  for  the  benefit  of  trade  ;  as  if  they  be  delivered  to  him  to  put 
into  a  wagon  in  a  private  barn. 

Neither  can  the  horse  on  which  I  am  riding  be  distrained  ;  for  it  i« 
in  use. 

Nor  can  wearing  apparel  if  in  use  be  distrained  ;  but  wearing  appa- 
rel not  in  use  is  distrainable  for  rent  (a). 

The  goods  of  a  tenant  are  liable  for  a  year's  rent  notwithstanding 
outlawry  in  a  civil  suit. 

Therefore,  where  a  sherilT's  officer,  being  in  possession  of  the- 
tcnant's  effects  under  an  outlawry,  made  a  distress  for  rent,  sold  the 
gootls  distrained,  and  afterwards  the  outlawry  was  reversed:  the 
oJUcer  was  held  liable  to  pay  the  produce  of  the  goods  in  an  action 

fo}   1  E«p.  U.  20G. 


Sect.  1. J  Rimidij  for  rent  In/  Distress.  '/,}\ 

for  money  Ij.iil  aiul  received  ;  for  they  wore  not  in  iti-itodid  /<  ,^/5,  the 
jiicljjineiit  being  nuTC  waste  paper.  If  diiriiiz  the  time  that  he  wa-* 
in  possession  under  the  outlawry,  he  was  |tiit  to  any  expctife  in  reaj)- 
iwj;  and  i^etting  in  the  crops,  he  may  maintain  an  action  a<f;ainsl  the 
tenant  to  recover  those  expenses — Even  if  the  outlawry  liad  nut  he»'n 
reversed,  the  landlord  would  liavc  Ijcen  entitled  to  a  year's  rent,  he- 
cause  capias  ufln^-atuni  at  the  srtjt  of  the  party  is  to  be  considered  only 
as  a  j)rivate  execution  ('/). 

Kut  sect.  8.  of  tlic  slat.  II  f,'.  2.  c.  l[).  every  landlord  may  take 
and  seize,  as  a  distress  for  arrears  of  rent,  any  cattle  or  h1o<  k  of 
Iiis  tenant  feeding  or  depasturing;  iijxm  any  connnon  apjjeridanl  (»r 
«pj»urtenant,  or  any  ways  belonging  to  any  part  of  Ihe  premise^)  de- 
mised. 

It  seems  to  be  now  settled,  that  wliore  beasts  escape,  and  come 
upon  land  by  the  negligence  or  default  of  their  owner,  and  are  tres- 
passers there,  they  may  be  distrained  inuuediately  liy  the  landlord  for 
rent  arrear  {h). 

But  where  they  come  upon  land  by  llic  insufTiclcncy  of  fences, 
which  tlie  tenant,  being  a  lessee,  ought  to  repair,  the  lessor  cannot. 
distrain  such  beasts,  till  tlicy  have  been  trvayit  and  rouchaiit,  arnl  afld' 
that  actual  notice  has  been  given  to  the  owner  that  they  are  there,  and 
he  has  afterwards  neglected  to  remove  them.  Kut  such  notice,  it  is 
said,  is  not  necessary  where  the  distress  is  by  the  lord  of  the  fee  for  an 
ancient  tent,  or  by  the  grantee  of  a  rent-charge. 

Therefore,  where  a  stranger  puts  in  his  beasts  to  graze  for  a  niiht 

by  the  consent  of  the  lessor  and  licence  of  the  lessee,  yet  the  hssor 
may  distrain  them  for  rent  due  out  of  tlio-^o  lanils  whicli  he  consented- 
that  the  beasts  should  giazc  on  ;  because  such  consent  was  no  waiver 
of  his  right  to  dislrain,  unless  it  had  been  expressly  agreed  so;  for 
being  but  a  parol  agreement,  it  cotdd  not  alter  the  original  contract 
J)etwecn  the  lessor  and  lessee,  from  which  the  power  to  distrain  arL':es. 

The  circumstance  of  the  beasts  being  on  the  road  to  market  does  not 

privilege  them  from  the  distress. 

As    to    cattle,    thercfoie,    the    safest   A\ay  is  lo  drive  them  to  a 

pid)lic   inn;    for  an    inn  being  Jmhliti  juris,  and  every  man  iinving 

a  right  to  put  up  at  it,  the  cattle  anil  goods  of  a  guest  arc  not  distrain- 

ablc  there. 

'ihe  privilege  wliidi  exempt:^  catth'  and  goods  from  being  distnined 

at  an  inn,  €arises  from  the  circumstance  of  their  bein:;  there  by  ajthority 

of  law;  for  common  inns  are  so  much  devoted  to  the  pul)lic  service 

tint  their  owners  are  obliged  to  receive  all  guests  and  horses  that  come 

;othen>  for  reception. 

r,     •    "    K   '-s*    »,  '.  'k1     \\K  T.  of  l'l»     iS,'r 


312  liemedy  for  rent  hy  Distress.         [Chap.  XIIL 

But  ths  cattle  or  goods  must  lie  actually  within  the  premises  of  the 
inn  itself,  to  be  exempted  from  distress,  and  not  in  any  place  to  which 
the  tenant  may  have  removed  them  for  his  convenience :  for  where  a 
race-horse  was  distrained  for  rent  at  a  stable  half  a  mile  distant  from 
the  inn,  the  distress  was  determined  to  be  a  good  one,  and  that  the 
piaintiii"  had  no  remedy  but  against  the  innkeeper. 

But  if  fraud  be  used  to  obtain  this  remedy,  a  court  of  equity  will  af- 
ford relief. 

Thus,  where  the  servants  of  a  grazier  driving  a  flock  of  sheep  to 
London  were  encouraged  by  an  innkeeper  to  put  the  sheep  into  pasture 
grounds  belonging  to  the  inn,  and  the  landlord  seeing  the  sheep,  con- 
sented that  they  should  stay  there  for  one  night,  and  then  distiained 
them  for  rent,  the  grazier  was  relieved  against  the  distress  (rt). 

It  has  been  thought  by  the  Court  of  Chancery,  that  the  grounds 
used  with  an  inn  ought  to  have  the  same  privilege  as  the  inn  itself,  and 
therefore  that  the  cattle  of  strangers  or  passengers  ought  not  to  be  dis- 
trained there. 

This  privilege  also  extends,  it  seems,  only  to  temporary  guests ;  for  a 
person  who  hires  an  unfurnished  room  in  an  inn,  by  such  hiring,  be-i 
eomes  an  under-tenant,  and  any  furniture  that  he  may  have  brought 
into  such  room  must  be  liable  to  the  landlord's  distress.  A  landlord 
may  distrain  for  the  rent  of  ready  furnished  lodgings  (b). 

In  a  case  where  a  rent-charge  had  been  in  arrear  for  twenty  years, 
and  cattle  escaping  out  of  the  adjoining  grounds,  had  been  distrained 
for  the  arrears,  the  distress  was  relieved  against  in  equity. — For  a  rent- 
eharge  the  grantee  cannot  distrain  a  stranger's  beasts  until  they  are 
levant  and  couchant :  for  this  rent  does  not  stand  upon  a  feudal  title,  as 
rent-service  does,  but  is  said  to  be  against  common  right;  \\herefore 
the  stranger's  beasts  must  be' so  long  resident  on  the  lands  out  of  which 
the  rent-charge  issues,  that  notice  may  be  presumed  to  the  owner  of 
them  ;  that  is,  they  must  be  lying  down  and  rising  up  on  the  premises 
for  a  niglit  and  a  day  without  pursuit  made  by  the  owner  of  them. 

Whatever  is  part  of  the  freehold  is  exempted  from  distress,  for  that 
which  is  part  of  tlie  freehold  cannot  be  severed  from  it  without  detri- 
ment to  the  thing  itself  in  the  removal  ;  consequently  it  cannot  be  such 
a  pledge  as  may  be  restored  in  the  same  condition  to  the  owner:  be- 
sides that  which  is  fixed  to  the  freehold  is  part  of  the  thing  demised  ; 
those  things  therefore  that  favour  of  the  reality  are  not  distrainable. 

This  privilege  extends  to  such  things  as  the  tenant  will  not  be  per- 
mitted on  any  consideration  to  remove  with  him  from  the  premises  by 
reason  of  their  being  iannexed  to  and  considered  as  part  of  the  freehold, 
and  not  because  they  are  absolutely  affixed  to  the  freehold  and  cannot 

(la)  Prec.  Cb.  7.  Ci)  2  Bos.  Pull.  N.  R.  224. 


Sect.  I.]  Jidiiidi/ f(^r  j-riit  hi/   PlslifSs.  313 

be  niovt'il  therefrom  ;  for  a  Iciuporary  removal  of  them  for  j)ur;>n«c(i 
of  necessity  is  not  sullicienl  to  destroy  the  privilege. 

Thus,  ;i  smith's  anvil  on  which  he  works  is  not  distrainaMe  ;  for  it  i.s 
accounted  part  of  tlic  for^i^e,  tlioui^h  it  be  not  actually  fixed  by  nails  to 
the  shop. 

So,  a  millstone  is  not  distriinable,  though  it  !)c  removed  out  of  its 
proper  place  in  order  to  be  jjickcil;  because  such  removal  is  of  necessi- 
ty, and  the  slone  still  continues  to  be  part  of  the  mill. 

Tliat  \\  hich  is  in  the  hands  and  actual  occupation  of  another  cannot 
be  distrained  ;  for  that  cannot  be  a  pledge  to  mo  of  w  hich  another  has 
the  actual  use  {a). 

So,  wcariu!^'  apparel  cannot  be  distrained  whilst  on  the  i)ersoi)  of  the 
owner;  but  if  taken  oil",  tJiough  merely  lor  tli'j  piuposc  of  natural  re- 
pose, it  may  be  distrained,  upon  the  principal  of  not  !»  in^  in  actual 
use. 

Goods  in  the  custody  of  the  law  arc  not  distrainal)le;  for  it  is  c.r  vi 
termini  repugnant  tliat  it  should  be  lawful  to  take  qoods  out  of  the  cus- 
tody of  the  law;  and  that  cannot  be  a  pledi^e  to  me  which  I  cauuvt 
reduce  into  my  actual  possession. 

Therefore  goous  distrained  for  damage  feasant  cannot  be  talen  foi 
rent  ;  nor  goods  in  a  bailiff's  Jiaiids  under  an  execvdion  ;  nor  2;oocU 
fcized  l)y  process  at  the  suit  of  the  king,  v,r  taken  under  an  attiichmcnl : 
nor  u  ill  a  replevin  lie  for  them. 

N«'ither  can  goods  be  distrained  wliich  have  been  sold  under  execu- 
tion of  a  writ  oi  fieri  facids,  but  so  circumstanced  th<it  it  has  not  been 
proper  to  remove  them  from  the  premises.  Thus,  where  a  tenant's  curi] 
%vhile  growhig  was  seized  and  sold  under  a.Ji.fa.  and  the  vendee  per 
mitted  it  to  remain  till  it  was  ripe  and  then  cut  it,  after  which,  and 
iK'furc  it  was  lit  to  be  carried,  the  Inndlord  di^trdined  it  for  rent,  both 
the  Courts  of  K.  H.  ami  C.  P.  held  that  it  v.  as  not  distrainable.  But 
where  corn  was  taken  in  execution  and  sold  by  the  sheriff  under  the 
Stat,  2  W.  <<r  M.  c.  5.  s.  o.  and  the  vendee  pcrnjillcd  it  after  severance 
to  lie  on  the  ground,  the  Court  held  it  to  be  distrainable  for  rent. 

A  landlord  having  a  legal  right  to  distrain  goods  while  they  remain 
on  the  premises,  the  issuing  a  commission  of  bankrupt  against  tlic  ten- 
ant, and  the  niessenger's  possession  of  the  goods  of  the  tenant,  will  not 
liinder  him  from  distraining  for  rent  ;  and  tJjc  assignment  by  the 
commissioners  of  the  bankrui)t's estate  and  elicits  is  only  changing  the 
property  of  the  goods,  whicii  w  hile  on  the  premises  remain  liable  to  bo 
distrained. 

Kiit  if  the  landlord  neglects  to  distrain,  and  suflcrs  the  goods  to  be 
sold  by  the  assignees,  he  can  only  come  in j:ro  radi  with  the  rest  of  the 
creditors. 


3M  Remedy  for  rent  bij  Distress.        [Chap.  XIIL 

In  some  cases  the  distress  itself  is  not  protected  even  from  a  sub- 
sequent  process  :  thus  where  the  question  was,  whether  goods  were  not 
liable  to  be  seized  on  an  immediate  extent  for  the  king's  own  debt  after 
a  distress  had  been  tak^n  of  the  same  goods  by  a  landlord  for  rent  justly 
due  to  him,  before  an  actual  sale  of  the  goods  ?  the  Court  of  the  Er- 
chfqr.cr  detcrniined  that  the  extent  took  place  of  the  landlord's  claim 
for  rent,  upon  the  authority  of  a  much  stronger  case  which  had  been 
before  determined  in  that  Court,  in  which  the  time  for  the  sale  had  ex- 
pired, and  an  attachment  had  'oeen  moved  for  against  the  sherifl",  for  not 
having  executed  the  w  rit  of  venditioni  exponas. 

But  if  a  replevin  come  after  goods  are  sold  on  the  execution,  the 
defendant  must  claim  property  ;  for  then  they  are  out  of  the  custody  of 
the  law,  and  in  the  hands  of  a  private  person. 

Lastly,  as  every  thing  ^vhich  is  distrained  is  presumed  to  be  the  pro- 
pcrty  of  the  wrong  doer,  it  follows  that  such  things  wherein  no  man 
can  hav€  an  absolute  and  valuable  property,  as  dogs,  cats,  rabbits,  and 
all  animals/<  rcE  Jiafura',  cannot  be  distrained. 

Yet  if  deer,  which  are/<?rflE  nattirce,  are  kept  in  a  private  enclosure 
for  the  purpose  of  sale  or  profit,  this  so  far  changes  their  nature,  by  re- 
ducing them  to  a  kind  of  stock  or  merchandise,  that  they  may  be  die- 
tjraiued  for  rent. 

AVhen  we  speak  of  chattels  not  di^trainable,  it  must  be  understood 
with  reference  to  the  subject  of  this  chapter,  namely,  as  a  remedy  for 
the  recovery  of  rent ;  for  all  chattels  whatever  are  distrainable  damage 
feasant,  it  being  but  natural  justice  that  whatever  doth  the  injury 
should  be  a  pledge  to  make  compensatioii  for  it. 

Where  a  wrongful  distress  is  made,  ai]d  the  party  whose  goods  are 
so  distrained  pays  money  in  order  to  redeem  them,  he  may  maintain 
trover  against  the  wrong  doer  (a). 

Distress,  when,  nherc,  and  how  7nadc.— Willi  respect  to  the  time,  place, 
and  manner  of  making  a  distress,  it  is  to  he  ob^served,  that,  a  distress 
fur  rent  cannot  be  made  in  the  night,  [which  season  is  said  to  be  from 
after  sun-set  till  sun-rise,]  because  the  tenant  hath  not  thereby  notice 
to  make  a  tender  of  hie  rent,  which  possibly  he  might  do  in  order  to 
prevent  the  impounding  of  his  cattle  (/>). 

The  distress  for  rent  must  be  for  rent  in  arrear ;  therefore  it  may  not 
be  made  the  same  day  on  which  the  rent  becomes  due,  for  if  the  rent  be 
paid  at  any  time  during  that  day,  whilst  a  man  can  see  to  count  it,  the 
payment  is  good.  Strictly  indeed  the  rent  is  demandable  and  payable 
before  the  time  of  sun-set  of  the  day  whereon  it  is  reserved  ;  yet  it  is 
not  due  till  the  last  minute  of  the  natural  day,  for  if  the  lessor  die  after 
sun.set,  and  before  midnight,  the  rent  shc^lI  go  to  the  heir,  and  not  ta 
the  executor. 

'''Ci  C  T.  R.  L'9B-  rV  r,il').T  .  of  I'ist-  56,  ^'C 


Bed.  I.]  Jiemaly  fur  rent  hi/   IlistrKS.  315 

But  the  custom  of  a  placr,  or  an  ai;rr<"mciit  httuctri  lli(  I  ui<lloi»l  ;iiiJ 
tenant,  if  tiicrc  l>f  no  objection  to  it  in  point  of  law,  njay  t  nipoun  tlic 
landlord  to  distrain  for  it  earlier,  for  convenlio  viudt  lit(nn. 

Thereforf  if  a  trader,  after  connuilting  an  act  of  bankruptcy,  take  a 
shop,  and  ai;rec  to  pay  a  year's  rent  in  advance,  where  by  the  custom 
of  the  country  haU  a  year's  rent  becomes  due  on  the  d;iy  on  which  tiie 
tenant  ejiteis,  the  landlord  after  an  assignment  under  the  commission, 
and  before  the  year  be  expired,  may  ilislrain  L;oo<lson  the  premises  for 
half  a  year's  rent,  or  if  he  buy  the  tenant's  gi;u(i:i,  he  may  retain  the 
amount  uf  the  half  year's  rent. 

A  distress  most  not  be  after  tender  of  payment,  for  if  the  landlord 
come  to  distrain  the  iroods  of  his  tenant  for  rent,  the  tenant  may,  be- 
fon  the  distress,  tender  the  arrearages,  and  if  the  <listresb  be  afterwards 
taken  it  is  illegal.  So,  if  the  landlord  have  distrained,  and  the  tenant 
make  a  tender  of  the  arrearages  before  the  impiuinding  of  the  ilistress, 
the  landlord  ought  to  deliver  up  the  distress,  and  if  he  tloes  not,  the 
detainer  is  unlawful. 

But  tender  of  rent  after  distress  is  impounded,  is  Insufiicient,  for  thcu 
it  is  in  tiie  custody  of  the  law  (a). 

An  action  on  the  case  will  not  lie  for  detaitiing  cattle  distrained  and 
impounded,  where  a  tender  of  amends  was  not  made  till  after  the  im- 
pounding; and  commc  sinnhlr  such  an  action  could  not  be  supported, 
even  if  the  tender  of  amends  had  been  made  brfore  the  iiupmuiding  :  as 
the  proper  mode  of  trying  the  validity  of  distretb  is  by  action  cS  reple- 
vin or  trespass  (//). 

A  tender  of  rent  at  the  proper  time  and  plicc  v.  ill  save  a  di'^tress,  or 
entry,  or  other  condition  in  the  lease,  though  the  landlord  refuse  to  take 
it,  the  tenant  having  done  all  that  he  was  bound  to  do  :  the  landlord 
may,  however,  maintain  an  action  of  debt,  or  covenant  for  his  rent,  but 
shall  not  recover  damages  or  costs  for  non-payment  (r). 

A  distress  may  be  made  for  rent  accrued  after  the  expiration  of  a  no- 
tice to  quit,  but  it  is  a  waiver  of  the  ni>ticc  ;  the  taking  of  the  distress 
being  a  proof  of  tlie  landlord's  intention  to  confirm  the  tenancy. 

At  common  law,  and  before  any  innovation  was  made  by  statute,  the 
landlord  could  not  have  distrained  lor  his  rent  after  the  determination 
of  his  lease  :  but  now  a  distress  for  rent  may  be  made  t!ioni;li  tlie  lease 
be  determined  (</). 

For  by  stat.  8  Ann.  c.  14.  s.  G,  7.  it  is  enacted,  That  it  si. all  ])e 
lawful  to  distrain  after  the  determination  of  the  lea^e,  i;i  the  siimc  man- 
ner as  if  it  had  n  )t  been  determiied,  provided  the  distress  !)e  n>ade 
within  six  calendar  months  after  the  determination  of  the  lease,  and 


316  Ilcmcdy  for  rent  by  IJisiress.      [Chap.  XIII. 

during  tlie  continuance  of  the  landlord's  title  or  interest,  and  also  dur- 
ing the  j)c)s.-=e.ssion  of  the  tenant. 

But  uhf^re,  by  the  custom  of  the  country,  the  off-going  tenant  is  al. 
ioued  any  advantases  respecting  the  premises  which  he  has  quitted,  as 
for  examj.'le,  a  certain  period  within  which  to  get  in  and  dispose  of,  or 
to  thresh  and  i^eep,  his  corn,  <S''r.  the  interest  and  connexion  between 
tl^e  landlord  and  tenant  is  so  continued  by  the  operation  of  such  cus- 
tomary right,  that  the  former  is  entitled  to  distrain  for  rent  in  arrear 
after  six  months  have  expired  since  the  determination  of  the  lease. 

So,  if  a  tenant  dies,  and  his  represetitative  enters  upon  the  j)remises, 
and  continues  therein  until  the  end  of  the  term,  and  afterwards,  the 
landlord  may  at  any  time  Avithin  the  six  months  after  the  end  of  the 
term,  under  the  restrictions  prescribed  J)y  the  Act,  distrain  for  the  ar- 
rears which  Mere  due  at  the  time  the  original  tenant  died,  as  well  as 
for  what  accrtied  afterwards. 

No  jirivate  person  can  distrain  beasts  of  his  own  land,  or  on  the  high 
road,  which  is  priviieged  for  the  convenience  of  passengers  and  the  en- 
couragement of  commerce. 

But  though  chattels  or  pledges  on  the  land  only  are  to  answer  the 
lord's  rent,  yet  if  the  lord  comes  to  distrain,  and  tlie  tenant,  seeing  him, 
drives  the  cattle  off  the  land,  the  lord  may  follow  the  beasts  and  dis- 
train out  of  his  fee,  if  he  had  once  a  view  of  his  cattle  on  his  land. 
But  if  the  beasts  go  off  the  land  of  themselves  iiefore  the  lord  observes 
them,  he  cannot  distrain  them  afterwards,  as  he  might,  where  the  te- 
nant drives  them  ofl\ 

Adhere  there  are  separate  demises,  there  ouqht  to  be  separate  dis- 
tresses on  the  several  premises  subject  to  the  distinct  rents  ;  for  no  dis- 
tress on  one  part  can  be  good  for  both  rents. 

But  where  lands  lying  in. different  counties,  are  held  under  one  de- 
mise at  one  entire  rent,  a  distress  may  be  lawfully  taken  in  either  county 
for  the  Mhole  rent  in  arrear  ;  and  chasing  a  distress  over  is  a  continu- 
ance of  the  taking.  But  where  the  counties  do  not  adjoin,  a  distress 
cannot  be  chased  out  of  one  county  into  the  other. 

By  statute  11  G.  2.  c.  19.  [of  v/hich  more  par-icularly  hereafter,]  if 
any  tenant  for  life,  years,  at  will,  sufferance,  or  otherwise  shall  frau- 
dulently or  clandestinely  convey  his  goods  oil"  the  premises,  to  prevent 
his  landlord  from  distraining  the  same,  such  person,  or  any  person  by 
him  lav.  fully  empowered,  may,  in  thirty  days  next  after  such  convey- 
ance, seize  the  same  wherever  they  shall  be  found,  and  dispose  of  them 
in  such  manner  as  if  they  had  been  distrained  on  the  premises. 

But,  by  sect.  2.  of  the  same  statute,  the  landlord  shall  not  distrain 
any  goods  which  shall  have  been  previously  sold,  bona  fidr,  and  for  a 
valuable  consideration,  to  any  person  not  privy  to  such  fraud. 

By  sect.  3.  eiery  tenant  who  shall  convey  away  his  goods,  and  every 


Sect.  I.]  JRcmedij  for  rtjit  hy  Dislriss.  ;ij7 

person  who  sljall  kiiou  Ini^ly  aid  or  a^^^sist  him  therein,  or  in  concealing 
the  same,  slrill  forfeit  to  the  luntllorrl  iloiililc  1  lie  vahic  of  t-uch  goods. 

Hy  sect.  7.  of  the  same  statute,  it  is  enacted,  That  wjierc  any  goods 
or  chattels,  frauilnlently  or  clandestinely  onvcyed  oiF  the  premises  Jo 
l)r«;vent  t!ie  Iindlord  from  distraining  tJieiii   f^r  rent,  iliall  he  i)ul, 
j»laeerl,  or  kept  in  any  house,  ham,  hiable,  uut-hoiisc,  yard,  close  t)r 
place,  lorkeil  up,  fastened  or  olhor^i.-c  secured,  it  shall   he  lawful  for 
the  landlord,  his  sfewaril,  or  other  pi^rson  empowered  l)y  him  for  thai 
purpose,  to  take  and  seize  a«  a  distress  f(ir  rent,  such  goods  and  chat- 
tels (first  calling;  to  his  assistahoe,  tlic  constable,  hcadhoroujjh,  hors:- 
I)older,  or  other  pCiice-oOlcer  of  tlic  huiitlrcJ,  district,  or  place  where 
tlie  same  shall  he  suspected  to  l>e  concealed)  ;  and,  in  case  of  a<l\vellin^- 
honse,  (oath  heinuf  also  lir.^t  midj  h'.l'orc  a  justice  of  the  peace,  of  a 
roa-^onaljle  i:;round  to  sui-pect  that  sucli  goods  or  chattels  arc  therein,) 
in  tlie  day-time,  to  break  open  antl  enter  into  such  house,  barn,  sta])le, 
out-hoiisc,  yard,  close  and  place  ;  aiul  to  take  and  seize  such  goods  aud 
chattels  for  the  arrears  of  rent,  as  he  might  have  tloiic,  if  they  had  been 
in  an  open  place. 

If  a  landlord  comes  into  a  house  and  seizes  upon  some  goods  as  a 
distress  in  the  name  of  all  the  goods  in  tlie  house,  it  will  be  a  good  seiz- 
ure of  all. 

Distresses  cuight  not  to  be  excessive  ;  but  in  proportion  to  the  sum 
distrained  for,  according  to  the  statute  of  A/^r/r/ir/r/jfr?,  52//.  3.  c.  i. 

Thus,  if  tl:e  lord  distrain  tu  o  or  three  oxen  for  V2d.  this  is  unrcason- 

'I)le  ;  so  if  he  distrain  a  harsc  or  an  ox  for  a  small  sum,  where  a  sheep 

■  ir  a  swine  maybe  had,  this  is  an  excessive  distress. — Hut  if  there  be 

no  other  distn?^  on  the  land,  then  the  t:d:inL';  of  one  entire  thing, 

though  of  never  s.i  ^roat  value,  is  not  n»nf  Msouable. 

As  these  distresrcs  cannot  be  sold,  the  owner  upon  maRing  satisfac- 
tion, may  have  his  chattels  again. 

By  stat.  \7  C.  2.  c.  7.  in  all  cases,  where  the  value  of  the  cattle  dis- 
trained shall  not  be  found  to  be  of  the  full  value  of  the  arrears  distrain- 
ed for,  the  party  to  whom  sije]i  arrears  are  due,  his  executors  or  adniin- 
f  rators,  may  distrain  again  for  the  said  arrears. 

Rut  a  second  distress  cannot,  it  seems,  be  at  all  justified,  uhcrc  there 
enough  \vhich  might  have  been  taken  upon  the  first,  if  the  di-triiir.(  r 
had  then  thought  proper :  for  in  a  case  where  this  quistion  *  c  Urred. 
it  was  resolved,  that  a  mun  who  h;vs  an  entire  duty  (us  a  rent  fi»r  ex- 
ample) sh^II  not  split  the  entire  sum,  an<l  divtrain  for  one  part  of  it  at 
one  time,  and  for  the  other  part  of  it  at  another  time,  and  so  toties  quo- 
'  9  f)r  several  times ;  forthat.is  great  oj)prcs£ion. 
But  if  a  man  seizes  for  the  whole  '^iim  that  is  due  to  him,  and  only 
mistakes  the  value  of  the  gnnds  seized,  whi-^h  may  be  of  uncertain  or 
imaginary  value,  as  pictures,  jewel?,  race  horses,  &c.  there  is  no  reason 

42 


il3  Rancdy  for  rent  hy  Dislrcss,     [Chap.   XIII. 

vhy  he  sliouid  not  afterwards  complete  his  execution  by  inaking- a  fur- 
ther seizure. 

For  taking  an  excessive  distress,  a  man  is  not  liable  to  a  criminal  pro- 
secution. 

.Neither  can  a  general  action  of  trespass  be  maintained  for  an  exces- 
sive distress. 

Kiit  the  remedy  is  by  a  special  action  founded  upon  the  statute  of 
MarlOridge.  On  this  statute  even  there  can  be  no  remedy  where  there 
is  a  remedy  at  the  common  law  ;  nor  if  ilie  piaintiii'  has  recovered  in 
replevin  ;  for  tire  action  on  the  statitc  is  founded  upon  there  being  a 
cause  of  distress,  of  which  the  recovery  in  replevin  shews  there  was 
none  ;  moreover,  in  replevin,  damages  were  recoverable  for  the  taking, 
and  a  man  shall  not  be  permitted  to  say  that  there  was  a  cause  of  dis- 
tress, after  he  has  recovered  upon  the  ground  of  its  being  unlawful. 

The  Court  of  Chancery  made  an  order  specifically  to  restore  to  a  te- 
nant the  stock  on  the  farm  seized  by  the  landlord  under  a  distress  and 
bill  of  sale,  the  landlord  not  stating  whether  the  sum  under  which  by 
the  terms  of  the  contract  he  was  not  to  enforce  his  remedies,  was 
due  (a). 

If  any  distress  and  sale  be  made,  as  for  rent  in  arrear  and  due,  when 
in  truth  not  any  is  due,  in  such  case  the  owner  may  recover  double  the 
value,  with  full  costs  of  suit,  in  an  action  of  trespass,  or  upon  the  case, 
on  the  Stat.  2  IF.  ^-  M.  sess,  1.  c.  5.  s.  5. 

If  the  distress  be  made  without  cause  the  owner  may  make  rescons, 
that  is,  rescue  it ;  but  if  it  be  impounded,  he  cannot  break  the  pound 
and  retake  it,  because  then  it  is  in  the  custody  of  the  law. 

Distress  how  to  be  used. — Notice  of  the  distress,  with  the  cause  of 
such  taking,  must  be  given  to  the  owner  by  the  stat.  2  W.  &  M.  sess. 
1.  r.  5.5.  l.« 

As  to  tlic  manner  in  which  the  distress  is  to  be  ured  and  disposed  of; 
a  distress  is  to  be  kept  in  a  pound,  which  is  nothing  more  than  a  public 
prison  for  goods  and  chattels,  and  is  cither  overt,  or  open,  or  covert,  or . 
shut.  All  living  chattels  are  regularly  to  be  put  into  the  pound  overt, 
because  the  owner  at  his  peril  is  to  sustain  them,  wherefore  they  ought 
to  be  put  in  such  an  open  place  as  he  can  resort  to  for  the  purpose. 

By  the  stat.  1  ik  2  Ph.  6c  i\L  r.  ]2.  s.  1.  no  distress  of  cattle  is  to 
be  driven  out  of  the  hundred,  rape,  wapentake,  or  lathe,  where  the 
same  is  taken,  except  it  be  to  a  pound  overt  within  the  same  shire,  nor 
above  three  miles  from  the  place  where  the  same  is  taken  ;  nor  im- 
pounded in  several  places,  whereby  the  owner  may  be  constrained  to 
sue  several  replevins ;  on  pain  of  forfeiting  to  the  party  grieved  one 
hundred  shillings,  and  treble  damages. 

n    iOVes.   159. 


h>ect  I.]  Rtmuhj  fur  rent  bij  Dislnss.  :<!!♦ 

By  5cct.  U.  of  llic  s;in»c  statuk,  no  person  shall  take  for  Icccpiii:;  in 
pound  or  impoiiiicliiii^  any  distress,  al)ove  four-pcnrc  for  a;iy  one  wliole 
ilislrci^s;  and  w  licre  less  halh  bucii  used,  lli»rc  to  lalvt'lcys;  on  pain  of 
forli;iliM.^  .").'.  to  tin- i).i:ty  "tI'jv  rd,  Nc^idcs  \\  Ii  if  he  >ii')u!J  take  aljovc 
foiir-penn 

But  where  lands  lyiiiy  in  tuo  adjoinin'j:  counties  \vcji'  held  under  onr 
deujise  at  one  entire  rent,  and  the  lamllord  dii^triiincd  cattle  in  liotli 
counties  fur  rent  arrcar,  it  was  holden,  tliat  he  niigiit  chase  them  all 
into  one  county  :  if  the  counties  Iiud  not  adjoined,  it  uoulil  have  been 
xlhcruise. 

The  oji'ence  created  hy  this  statute  for  impounding  a  distress  in  a 
wrong  place,  is  ?)ut  a  single  otience,  and  shall  !)e  satisfied  with  one  f(nv 
feiliire,  though  three  or  lour  are  coiicerntd  in  doing  the  act,  as  the  of- 
fence cannot  he  severed  so  as  to  make  each  ollender  tei)arat(ly  iialileto 
the  penalty  ;  the  meaning  of  the  statute  being  th'at  the  j)cnalty  shall 
be  referred  to  the  oilence,  not  to  the  person. 

•  As,  where  tlircc  per;<jns  distrained  a  flock  of  bliccp,  and  severally  in:- 
pounded  them  iu  three  several  po^untls,  \\ hereby,  A'- r.  it  was  held,  tliat 
they  should  forfeit  but  one  o/,  and  one  treble  damages. 

Trespass  will  not  lie  a'^ainst  tlie  poundkecper  merely  for  receiving  a 
distress,  though  the  ori^^inal  taking  he  tortious :  for  the  pound  is  the 
custody  of  the  law,  and  the  poundkecper  is  bound  to  take  and  keep 
whatever  is  brought  to  hiui  at  the  peril  of  the  person  who  brings  it  ; 
and  if  wrongfully  taken  tiiey  are  answerable,  not  he  ;  for  when  cattle 
j.re  (Jnce  impomided,  he  cannot  let  thenj  go  without  replevin  or  the 
consent  of  the  party.  If  howevir  ilie  poundkecper  goes  one  jot  beyond 
his  dnty  and  assents  to  the  trespass,  that  may  be  a  dillerent  ca^e. 

Neither  can  a  poundkecper  bring  an  action  if  llu^  pound  be  broken, 
l)ut  it  must  be  broiijiht  by  the  party  interested. 

JBcasts,  as  is  said,  ought  to  be  put  in  a  puiilic  pound  ;  f  )r  if  tliey  are 
placed  in  a  private  poinid,  the  distrainer  must  keep  them  at  his  peril 
with  provision,  for  w  hich  he  sliall  have  no  satisfaction,  and  if  they  die 
for  want  of  sustenance,  the  distrainer  shall  answer  for  them. 

Dead  chattels  however,  as  householil  goods,  Ncc.  which  mny  re- 
ceive damage  by  tlie  weather,  nmst  be  put  into  a  pound  covi  rt,  other- 
wise the  distrainer  is  answerable  for  them  if  they  be  damaged  or  stolen 
away,  and  this  pound  covert  muA  be  willun  three  miles,  and  in  the 
.lame  county. 

Now,  by  stat.  11  (7.  2.  r.  10.  s.  10.  any  person  distraining  nny  im- 
pound or  otherwise  secure  the  distress  of  whxt  kind  soever  it  be,  in 
Huch  place  or  on  such  part  of  the  j)remi>es  assh.dl  be  m>st  c  mvenicnl  ; 
and  ujay  appraise  and  sell  the  same,  as  any  pcison  b.fore  mig  it  have 
done  oil  the  premises. 

The  distrainer  cumot  work  or  u::c  tl.e  thing  distrained,  whc'J.er  it 


31^0  litmahj  for  rail  hij  JJlslrcss.       [Cbap.  XIII. 

lie  in  a  pound  overt  or  covert :  hccaufc  the  distrainer  lias  only  the  cus- 
tody of  the  thing  as  a  pledge  ;  but  the  ov.  ucr  niay  make  profit  of  it  at 
his  pleasure. 

An  excc])lion  to  this  rule  exists  in  respect  to  milch  klne,  -which  may 
be  milked  by  the  distrainer  because  it  may  be  necessary  to  their  pre- 
servation, and  consequently  of  benefit  to  the  owner.  [Cases  in  the 
books  cast  some  degree  of  doubt  on  the  legality  of  this  dictum  in  Cro. 
Jae.  148.  (see  Jhnit's  Gilbert'' s  Law  of  Distress,  74.)  but  the  reason  of 
the  thing  is  so  forcible,  that  we  incline  to  think  that  the  dictum  of  that 
day  respecting  this  point,  would  be  recognized  as  law  at  this  period.] 
The  distrainer  cannot  tie  or  bind  a  beast  in  the  pound,  though  it  be 
to  prevent  its  escape  ;  for  any  act  of  the  distrainer  that  tends  to  the  in- 
jury of  it  is  done  at  his  peril. 

But  if  cattle  distrained  die  in  the  pound,  without  any  fault  of  the 
distrainer  ;  in  such  case  he  who  made  the  distress  shall  have  an  action 
of  trespass,  or  may  distrain  again,  if  the  distress  was  for  rent. 

If  a  distress  be  taken  without  cause,  before  it  be  impounded,  the 
party  may  make  a  rescous.  But  if  jt  be  impounded,  he  cannot  justify 
the  breach  of  the  pound  to  take  it  out  of  the  pound,  because  the  dis- 
tress is  then  in  the  custody  of  the  law;  if  however  the  pound  be  un- 
locked, it  seems  he  may  take  them. 

By  theconmion  law,  if  a  man  break  the  pound,  or  the  lock  of  it,  or 
any  part  of  it,  he  greatly  oflends  against  the  peace,  and.  commits  a  tres- 
pass against  the  king,  ai;d  to  the  lord  of  the  fee,  the  shcrilis,  and  hiin- 
dredors  in  breach  of  the  peace,  and  to  tlie  party  in  delay  of  justice  : 
■wherefore  hue  and  cry  is  to  be  levied  against  hira  as  against  those  who 
break  the  peace  ;  and  the  party  who  distrained  may  take  the  goods 
again  wheresoever  he  finds  them,  and  again  impound  them. 

Besides  which,  by  stat.  2  W.  &.  M.  c.  5.  s.  4.  on  any  i)ound-breach 
or  rescous  of  goods  distrained  for  rent,  the  person  grieved  thereby  shall, 
in  a  special  action  upon  the  case,  recover  treble  damages  and  costs 
against  the  offender,  or  against  the  owner  of  the  goods  if  they  be  af- 
terwards found  to  have  come  to  his  use  or  possession. 

In  an  action  on  this  statute,  it  has  been  adjudged,  that  the  word 
"  treble"  shall  be  referred  as  well  to  the  word  "  costs,"  as  to  the  word 
**  damages,"  and  consequently  that  the  costs  shall  be  trebled  as  well  as 
the  damages  (<a).  Indeed  it  is  determined  in  general,  that  where  a  sta- 
tute gives  treble  damages  the  costs  shall  be  tre])led  of  course  (h). 

As  to  what  shall  be  a  rescous,  if  the  distress  while  l)eing  driven  to 
the  pound  go  into  the  house  of  the  owner,  who  delivers  them  not,  upoa 
demand  of  them  by  the  distrainer,  this  is  a  rescous  in  law. 

With  respect  to  the  disposition  of  the  distress,  which  being  consi- 

.'o)  1  Ld.  Raym.  iO  Jt)  l  l/i»t.  257. 


Sect.  I.]  Jicimdij  for  rait  hij  Disfrcss.  321 

dercd  as  ;i  plcdtjc  could  not  at  tlic  common  law  he.  sold  ;  hy  the  stat.  2 
jr.  ^'  M.  s<iis.  I.  r.  5.  S.2.  it  is-  enncleil,  That  where  any  goods  shill 
be  distrained  for  rent  reserved  and  due  uimn  any  demise,  lease  or  con- 
tract whatever,  and  the  tenant  or  owner  of  the  goods  distrained,  shall 
not  within  five  .days  nc.\t  after  puch  distress  taken  and  notice  thereof, 
with  the  cause  of  such  taivinij,  left  at  the  chief  mansion-house  or  other 
mo;  t  notorious  place  on  the  prcnii-cs,  rrplcvy  the  same  ;  in  such  case 
the  person  distraining  shall,  with  thesherill*  or  under-sheriii'  of  the 
county,  or  with  the  constal)lc  of  the  hundred,  parish,  or  j)lacc  where 
Fuch  distress  shall  he  taken,  cause  the  goods  so  distrained  to  be  ap. 
I)rai^■ed  by  two  sworn  aijpraisers,  (u  honi  such  sherill',  under-sheriir,  or 
constable  shall  swv.w  to  appraise  the  same  truly,  according  to  the  best 
of  their  understandings,)  and  after  such  appraisement  may  sell  the  same 
for  the  best  price  that  can  be  gotten  for  them,  for  salii-faclion  of  the 
rent,  and  charges  of  the -distress,  appraisement  and  sale  ;  leaVing  the 
overplus,  if  any,  with  the  shtrifl",  uiulcr-sheriil",  or  constable,  for  the 
owner's  use. 

In  the  notice  for  the  sale  of  a  di'^fress  untler  this  statute,  it  is  not 
necessary  to  set  forth  at  what  time  the  rent  becajue  due  for  which  the 
distress  has  been  made. 

If  tlie  person  distraining  is  swDrn  one  of  the  appraisers,  it  is  il!e::al, 
for  he  is  interested  in  the  business;  and  the  statute  says  that  hr,  wilii 
the  sheriiV,  v*s;c.  shall  cause  tlie  goods  to  be  appraised  by  two  sworn  ap- 
praisers. 

Tlie  landlord  must  remove  the  goods  at  the  end  of  five  days,  and 
•will  be  deemed  a  trespasser  for  any  time  beyond  it  that  he  keeps  them. 
The  five  days  allowed  before  a  distress  can  he  sold,  are  inclusive  of 
the  day  of  sale,  wherefore  it  seems  the  distress  may  be  removed  on  the 
sixth  «Iay. 

Thus  where  a  distress  was  made  and  a  regular  notice  of  sale  given 
on  the  12th  day  of  Mai/,  and  on  the  afternoon  of  the  ITth  day  of  the 
same  month  the  goods  were  removed  and  sold,  it  was  held  that  on  the 
evening;  of  the  ITth,  five  days  from  the  time  of  the  distress  had  com- 
pletely expired,  and  tliat  the  removal  and  sale  were  regular  according  to 
the  time  allowed  by  the  statute. 

Where  one,  w  ho  entered  under  a  warrant  of  distress  for  rent  in  ar- 
rear,  continued  in  possession  of  the  goods  u[ion  tlie  premises  for  fifteen 
days,  durin;^  the  four  last  of  which  he  was  removing  the  goods,  which 
were  afterwards  sold  under  the  distress :  held  that  at  any  rate  he  w  as 
liable  to  trespass  (/uara  cldiisuin  frcffii^  for  continuing  on  the  j)remi5cs 
and  disturbing  the  plaintiff  in  possession  of  his  house,  after  the  time 
allo^yed  by  law  (r/). 

.■)  11  Eut,  39S 


322  Heniedi)  for  rent  hy  Distress.      [Ciiap.  XIII.- 

Notice  to  the  owner  is  sufiicient  as  against  liim :  unless  a  replevin  had 
been  sued  by  the  tenant,  in  which  case,  personal  notice  to  the  tenant 
is  sufficient  to  warrant  a  sale  under  the  stat.  2  IK  <^  M.  sess.  1.  c.  5.. 
s.  2.  and  is  preferable  indeed  to  notice  left  at  the  raansion-house. 

Upon  the  sale  of  such  distress  the  appraisers  need  be  sworti  by  the 
constable  only  of  the  hundred  in  which  the  distress  is  impounded. 

An  irregularity  in  this  process  does  not  now  render  the  distrainer,  as 
he  Mas  at  the  common  law,  a  trespasser  ab  initio  :  for  by  stat.  11  G.2. 
c.  19.  s.  19.  it  is  provided,  that  where  any  distress  shall  be  made  for  any 
kind  of  rent  justly  due,  and  any  irregularity  shall  be  afterwards  done 
by  the  party  distraining  or  his  agent,  the  distress  shall  not  be  deemed 
unlawful,  nor  the  distrainer  a  trespasser,  cib  itiitio  ;  but  the  party  griev- 
ed may  recover  satisfaction  for  the  special  damage  in  an  action  of  tres- 
pass, or  on  the  case  at  his  election. 

Therefore  trespass  will  not  lie  for  an  irregular  distress,  where  the  ir- 
regularity complained  of  is  not  in  itself  an  act  of  trespass,  but  consists 
merely  in  the  omission  of  some  of  the  forms  required  in  conducting  the 
distress,  such  as  procuring  goods  to  be  appraised  before  they  arp  sold. 
The  true  construction  of  the  provision  in  11  G.  2.  c.  19.  s.  19.  that  the 
party  may  recover  a  compensation  for  the  special  damage  he  sustains  by 
an  irregular  distress  "  in  an  action  of  trespass  or  on  the  case,"  is  that 
he  must  bring  trespass,  if  the  irregularity  be  in  the  nature  of  an  act  of 
trespass,  and  case^f  it  be  in  itself  the  subject  matter  of  an  action  on 
the  case  («). 

But,  by  sect.  20,  no  tenant  f-hall  recover  in  such  action,  if  tender 
of  amends  had  been  made  before  the  action  brought :  and  by  sect.  21. 
the  defendant  in  such  action  may  plead  the  general  issue  and  give  the 
j-pccial  matter  in  evidence.  • 

Under  the  plea  of  the  general  issue,  given  by  this  Act,  a  landlord 
cannot  justify,  except  for  acts  done  as  landlord  :  therefore,  although  he 
juay  justify  as  far  as  the  distress  goes,  he  cannot  under  this  issue  justify 
expulsion.  So  also  if  the  goods  remain  on  the  premises  beyond  the 
five  days,  he  cannot  justify,  under  this  issue,  entering  the  house  to  re- 
move them  afterwards,  but  must  plead  a  licence  to  justify  the  asporta- 
tion, or  liberum  taieiw  ntwnio \u^i\iy  the  expulsion. 

For  goods  sold  therefore  before  five  days  have  expired  next  after  the 
distress  and  notice,  ap  action  of  trover  will  not  lie,  that  being  a  re- 
medy which  cannot  be  pursued  since  the  stat.  11  6".  2.  r.  19.  as  it  tends 
to  place  the  landlord  in  the  same  situation  as  he  was  before  the  passing 
of  that  Act :  the  action  ought  to  be  brought  specially  for  tlie  particular 
Irregularity. 

IJut  though  the  tenant  shall  make  satisfaction  for  the  real  damage 

((t)  2C!^mpb.  1!5. 


0 

{*iect.  TT.]  Of  the  Action  of  Debt,  AV.  iili!^  -    • 

only  sustained,))}' any  irregularity  inlakini^dr  disposing  of  the  distress ^ 
yet  l»y  the  slat.  2  //'.  ^'  M.  sess.  1.  c.  '>.  s.  3.  if  any  distress  and  saic    .* 
shall  be  )n;i(le  for  rent  pretended  to  be  due  to  !lie  person  tli^tr;uninl;. 
where  in  triilli  no  such  rent  is  lUic,  the  tenant  shall  recover  double  tiic   » 
value  of  the  goods  distrained,  together  with  full  costs  of  suit.    •  * 

Goods  distrained  by  liie  plaintiff  were  delivered  by  liini  to  the  de- 
fendant on  Ills  promising  to  pay  the  rent ;  an  action  for  money  had  and 
receiveil  nnouM  not  lie  lor  the  value  of  tiic  goods,  though  dei'endanL  ilo    ,    '^ 
not  pay  tlie  rent  (f/).  ; 

Where  llu're  are  three  joint   lessees,  two  of  ulioni  assign  their  li'-   '^     . 
terest  to  the  third,  whose  sole  liability  the  landlord  has  not  consented    1 
to  accept,  the  goods  of  the  plaintiff  being  put  on  the  premises  by  per-     *  ' 
raL«:sion  of  such  third  lessee  and  distrained  by  the  landlord  for  rent  and'  ]•  w 
he  having  paid  it,  the  three  lessees  arc  liable  to  him  for  Jiioney  i)aid  to     '    ^ 
their  use  (''). 

Section  IT.     Of  the  Aclion  of  Dchly   where    the    Lease  in   t/  # 

hjj  Died.  V 

Anotlier  remedy  for  tlie  recovcry^f  rent  is  by  action  of  dc])t,  or  co- 
venant, v.licre  the  premises  are  demised  by  deed. 

An  action  of  debt  or  covenant  lies  for  non-payment  of  the  rent  on 
the  word  "  yielding"  in  a  lease  for  years ;  for  it  is  an  agreement  to  pay 
the  rent,  which  \s  ill  make  a  covenant. 

The  action  of  de!)t  is  founded  upon  a  contract,  either  express  or  im- 
plied, in  which  the  certainty  of  the  sum  or  duty  appears,  and  the  plain-  Z'/'^— 
liii  is  to  recover  the  suni  in  tiumrroy  and  nnt  in  damages  (r).  t^*^^J 

Del>t,  being  an  aclion  founded  on  an  express  contract,  rents  reserved  / 

on  leases  for  years  were  at  all  times  recoverable  by  this  species  of  re- 
medy (J). 

So,  debt  lies  for  rent  ujion  a  lease,  though  the  defendant  entered  be- 
fore his  title  began  :  for  though  clearly  he  is  a  disseisor  by  Ids  entry, 
and  the  accruing  of  his  term  shall  not  alter  his  estate,  yet  debt  liitii 
for  privity  of  contract ;  and  whether  the  entry  be '.ortious  or  not,  it 
caniiot  discharge  the  contract  for  payment  of  the  rent  (r). 

At  common  law,  debt  did  not  lie  for  rent  reserved  upon  a  freehold 
lease  during  the  continuance  of  the  lease  (  /'). 

But  the  stat.  8  Ann.  c.  Ik  s.  4.  enacts.  That  any  pcrsor.s  entitled 
to  rent  arrear  on  a  lease  for  life  or  lives,  may  have  an  action  of  debt 

(a)  4T.  n.  fi«7.  (b)  2Eiip.R.«.     8  T    R,  309.  M  8w'' 

'd)  r-p.N.  p.  laS.     Lit  8  51*.  frj  Cro  Eli/    I<^'>      I  Sir  .^iP 

(f  -^  IJ   UavM.  io.se 


T^ 


Of  Utc  Aclion  of  Dell,  [Cliap.  XIIL 

ring  liic  txisleiice  of  the  life,  as  oii  a  lease  for  years  during  the 
term. 

By  tliestat.  '32 IL  8.  c.  o7.  s.  1.  the  executors  and  administrators  of 
tenants  in  fee,  fec-tuil,  or  for  life,  of  rent-services,  rent-charges,  rents- 
seek  and  fee-farms,  may  bring  debt  for  the  arrearages  against  the  tenant 
^   4  uh.o  ought  to  have  paid  the  same.     Tliis  statute  extends  to  all  tenants 

Vlfor  life. 
^\|  ^  Though  it  be  not  necessary  in  general  to  set  out  the  indenture  in  the 
*  J  declaration  in  debt  for  rent,  yet  it  seems  necessary  where  the  action  is 
1;;J   «  brought  on  a  lease  of  tithes,  which  being  an  incorporeal  hereditament 
lying  in  grant, could  not  be  granted  without  deed  (a). 

If  one  of  two  lessees  assign  his  interest,  and  tlie  other  die  before  the. 
rent  becomes  due,  an  action  of  debt  in  the  debet   et  detinet  will  lie 
against  tlie  assignee  and  executrix  of  the  deceased  lessee  for  the  whole 
^1  rent  {b). 

%  ^  So,  if  the  lessee  for  years  will  assign  all  his  term  in  part  of  the 
I  X  land,  the  lessor  shall  have  a  joint  action  against  the  lessee  and  as- 
J     S  signee  (f)^ 

}l^  If  there  is  a  lessee  for  years,  and  he  assigns  all  his  interest  to  another, 
k  \j  5'et  may  the  lessor  still  have  an  action  of  debt  against  him  for  rent  in 
arrear  after  the  assignment:  first,  because  the  lessee  shall  not  prevent 
by  his  own  act  such  remedy  as  the  lessor  Irath  against  him  on  his  con- 
tract :-2dly,  that  the  lessee  might  grant  the  term  to  a  poor  man,  who 
would  not  be  able  to  manure  the  land,  and  so  for  need  or  malice  th(; 
land  would  lie  untilled,  and  the  lessor  be  without  remedy,  either  by  dis- 
tress or  action  of  debt  ((/). 

But  the  lessor  may  either  tacitly  or  expressly  accept  the  assignee  for 
his  tenant,  and  so  discharge  the  original  lessee  :  and  if  he  once  accepts 
"^  **  Tftnt  from  the  assignee,  (who  is  bound  however  no  longer  than  while  in 
possession)  he  can  never  resort  back  again  to  the  first  lessee  {c). 

The  executor  or  administrator  of  a  lessee  for  years,  may,  like  any 
other  assignee,  assign  the  term,  and  shall  not  be  chargeable  for  rent  af- 
ter the  assigimierit  (fj. 

In  a  plea  of  assignment  in  a  lease  of  tithes,  it  is  necessary  for  the  de- 
fendant to  allege  that  he  assigned  the  term  by  indenture  ;  for  that  was 
always  required  by  the  common  law  ;  and  the  statute  of  frauds  29  C, 
2.  c.  3.  docs  not  apply  to  cases  of  incorporeal  hereditaments,  for  they 
are  not  within  the  mischief  intended  to  be  remedied  by  the  statute  (^). 

If  the  lessor  assign  his  rent,  without  the  reversion,  the  assignee  (if 
the  tenant  agrees)  may  maintain  an  action  of  debt  for  the  rent,  because 
the  privity  of  contract  is  transferred  (//). 

(a)  2  Saund.  297.  u.  1.  (b)  Cro.  Jac.  4ll.  (c)  Ibid- 

frfn  I'd.  Raym.  173.    4T.R.98.  (e1  E:p.N.  P.  201.     4  T.  li.  33. 

(/)  IW'1.  '.        ',e)  2;?aund.  198.  D.  2.  (h)  3  Salt.  \V6. 


^<'Ct.  II.]  nhirc  the  Lease  is  bjj  Deed.  32 j 

Jf  the  lessor  jjrant  awuy  his  reversion,  lie  cannot  Jiavc  an  action  of 
tiebt  for  the  rent,  wliidi  being  incident 'to  thcrevcr.sion,  passes  u  ith  it. — 
The  grantee  of  tlic  revcifiion,  therefore,  can  aloiic  Jjavc  the  action  (a). 

Kut  the  grantee  even  cannot  have  debt  against  the  lessee  if  he  has 
as<i^nc«l  over  ;  for  tlicre  uas  no  privity  between  thenj  but  l;y  reason  of 
the  privity  of  estate',  and  that  being  gone  l)y  tiic  assigniucnt,  tliis  action 

V  ill  not  lie  (/').  Siicli  is  the  cape,  uuetlier  the  pcrs-on  claiming  the 
rent  comes  in  l)y  succcFsic^n  or  grant :  lliiis  tiio  s-iiccesfor  of  a  prf^bend 
cannot  Ijring  del»t  against  the  executor  of  a  lessee  of  the  prebdidary, 

V  here  snch  executor  had  assigned  (r). 

Hut  if  a  les'ee  assign  part  of  the  land  demised,  a  grantee  of  the  re- 
version siiall  have  debt  against  liini  for  the  ^^hole  rent :  for  the  entire 
estate  remaining  in  one  part  of  the  laud,  llic  privity  remained  entire 
and  would  support  the  action  (^/). 

A  devisee  may  maintain  debt  for  Jiis  sliarc  of  the  rent,  and  if  there 
be  a  devise  of  a  rent  to  be  equally  divided  between  three,  cacli  may 
have  his  action  for  his  sliarc  (r). 

An  agreement  between  the  lessor  and  the  assignee  of  the  original 
lessee,  "  that  the  lessor  should  have  the  premisois  as  mentioned  in  the 
lease,  anil  should  pay  a  particular  sum  over  and  above  the  rent  annu- 
ally towards  the  good-will  already  paid  by  such  assignee,"  operates  as 
a  surrender  of  the  wliolc  term,  and  the  sum  reserved  for  good-will  being 
to  be  paid  annually  in  gross  and  not  as  rent,  the  assignee  cannot  dis- 
train either  for  that,  or  for  the  orii;inal  rent,  but  lie  has  a  remedy  by 
assumpsit  for  the.  sum  reserved  for  the  goodw  ill  (y ). 

If  a  lessee  for  yeairs  redemise  his  whole  term  to  the  lessor  with  a  re- 
servation of  rent,  it  operates  as  a  surrender  of  the  original  lease,  and 
therefore  he  cannot  maintain  debt  for  rent  against  the  executor  of  the 
original  lessor  ;  but  must  seek  relief  in  eqifity  (^). 

If  a  lessee  assign  Ids  ^vhole  term  to  a  stranger,  lie  may  bring  debt 
for  the  rent  reserved  on  the  contract  against  him  or  his  personal  repre- 
sentatives. 

•Soj  if  thclcssee  for  years  assigns  all  his  term  to  anoll'.er,  reserving 
the  rent  to  himself,  lie  shall  have  an  action  of  debt  fur  the  arrears 
during  the  term  ;  so  tiiough  not  properly  a  rent  for  ^^  ant  of  a  revcT- 
sion,  yet  it  partakes  of  its  nature,  being  a  return  for  the  profits  which 
are  annual  (It). 

Debt  does  not  lie  for  rent  upon  an  expired  lease.  Therefore  where 
lessee  for  life  made  a  lease  for  years,  rendering  rent,  and  afterwards 
surrendered  to  the  lessor  upon  condition:  the  le-^^ee  for  y^ars  took  a 
new  lease  for  years  of  the  Icrsor  ;  the  lessee  for  life  performed  the 


In)  Esp    >■    P.  ins. 

,:.•  Cro.  n]T..  3:t. 

C'  Ibid    i55 

{d)  IWJ   cr.3. 

e    lUid.  637. 

r/)  1  T  R  <ii 

':;■  :•  M"(?    :-i. 

326  Of  the  Action  of  Belt,  [Chap.  XIII. 

conf'ition,  and  put  out  tlie  lessee  for  years,  wlio  re-enters  ;  and  the 
lessee  for  life  brought  de])t  for  the  first  rent  reserved  ;  and  it  was  ruled 
that  it  was  not  nraintainable,  for  the  lease  out  of  which  it  was  reserved 
was  gone  and  determined  ;  for  though  the  surrender  of  the  tenant  for 
life,  which  made  the  lessee  i"or  yc^irs  immediate  tenant  to  the  first 
lessor  and  so  enabled  him  to  make  such  surrender,  was  conditional, 
yet  the  defeasance  of  the  estate  for  life,  by  performance  of  this  condi- 
tion, cannot  defeat  the  estate  of  the  Icssre  for  years,  which  was  abso- 
lute and  well  made,  and  then  the  rent  reserved  thereon  is  gone  like- 
wise {a). 

Yet,  if  a  lease  be  made  to  a  woman  dum  sola,  and  she  marries,  the 
term  expires  and  she  dies ;  debt  lies  against  the  husband  for  rent  accru- 
ing during  her  lifetime  ;  for  he  is  chargeable  by  reason  of  the  percep- 
tion of  the  profits  (Jj), 

So,  in  the  case  of  a  lease  for  years,  rendering  rent,  and  for  non-pay- 
ment thelease  to  be  void  ;  although  the  lease  become  void,  yet  for  rent 
due  before, debt  lies  (c). 

The  Declaration. — In  declaring  in  debt  for  rent  on  a  lease  for  years, 
the  plaintiff  need  not  set  forth  any  entry  or  occupation  ;  for  though 
the  defendant  neither  enters  nor  occupies,  he  must  pay  the  rent,  it 
being  due  by  the  lease  or  contract,  and  not  by  the  occupation :  therefore 
though  it  is  usual  in  the  declaration  to  say  "  by  virtue  of  which  the 
lessee  entered,"  yet  it  is  not  necessary  {(V). 

If  rent  is  reserved  quai'terly  and  half  yearly,  each  gale  is  a  distinct 
del)t  for  which  the  lessor  may  have  his  action,  and  may  declare  for  an 
entire  gale  at  the  end  of  any  quarter  or  half  year  without  shewing 
how  the  former  quarter  or  half  year  has  been  satisfied.  But  if  he 
tieclares  only  for  part  of  the  gale  due  at  the  end  of  any  half  year  or 
quarter,  it  is  bad,  tmless  he  shews  how  the  remaining  part  was  satis- 
fied ;  for  otherwise  the  lessee  may  be  exposed  to  many  actions  for  the 
same  demand  [e'). 

Whenever  rent  or  any  other  duty  is  reserved  quarterly  or  half  yearly, 
the  declaration  should  always  state  when  it  was  due  and  owing,  or  it 
will  be  bad  (/). 

So,  if  the  plaintiff  declares  for  less  rent  than  a  year  without  shewing 
how  the  rest  was  satisfied,  it  is  bad  ;  and  no  action  will  lie  for  half  a 
year's  rent  if  the  rent  be  reserved  annually  (5-). 

Jn  debt  for  rent  against  the  devisee  of  the  lessee,  the  plaintiff  must 
shew  that  the  defendant  entered  by  assent  of  the  executor,  or  virlute 
Ic^mtiofiis :  and  a  demand  must  be  made  of  the  rent. 

;5)  Cro.  Eli7.  264.  Eac,  Abr.  lit.  "  Leases."  [S  3.  1.]  {b)  1  Lev.  25. 

(c)  Cro  EJiz.  78.  ((i)  i^alk.  209.    1  Ld.  Raym.  17L 

(O  1  Vern.  129.     D  Salt.  113.    2  SauDd.  303.  o.  b.  C/;Show.  8. 

i//;Crc.  £l!z5:i5,  6. 


Hrct.  II.l  nhiir  llu  Lease  in  bj/  Deed.  327 

Wlicrc  the  i)IaiMtiii'  in  hi-;  declaration  umlrrtakrs  lo  rccit<-  a  Ir  ifc,  any 
mis-recital  is  fatal,  ii'tlic  action  he  foundtd  on  micIi  IcnsP. 

Tluis,  if  a  Icasp,  upon  wJjicli  a  gross  sum  aiul  three  fowls;  aro  reserved 
by  uay  of  rent,  is  represented  in  pleading  to  iiavc  rescrveil  the  gross 
sum  ^\ithout  mentioning  the  I'nwlir,  the  variance  it  fatal  {a)- 

In  debt  l»y  a  reniainder-man  forrent  rwerveJ  jipon  a  lease  hy  tenant 
for  life,  tlic  |)I<»intitr  must  sliew  whit  authority  the  tenant  for  life  hail 
to  make  the  lease  (/y). 

The  i'cnucnuiy  he  laid  cither  where  tiie  land  lies  rjr  where  the  deed 
Vi3S  executed,  or  it  sliouid  seem  in  any  place,  if  the  action  is  against  the 
original  letsce  (r). 

Bid  if  the  aciion  is  a:;aiiist  the  assiu^nee  vi  the  lessee,  it  must  he 
I  I'd  w  here  tiie  land  lies  ;  fur  lie  is  chargeable  only  on  the  privity  of  es- 
tate (d). 

Ho,  against  tlie  executor  of  the  lessee,  the  action  must  he  brought 
uUere  tlie  land  lies;  for  he  is  chargeable  as  assignee  on  the  privity  of 
estate  only  (r). 

So  also  dcl)t  for  rent  l)y  the  assignee  of  the  lessor  against  the  lessee, 
must  he  l)rouglit  win  re  the  land  lies :  hut  it  is  otherwise  in  the  case  of 
covenant  which  is  transitory  (/). 

In  debt  for  rent  against  an  executor  or  administrator,  if  tlie  whol 
rent  has  incurred  in  the  lifetime  of  llie  lessee,  the  action  against  hi? 
executor  must  be  in  the  dctinct  only  :  and  the  executor,  though  he  do 
not  enter,  is  still  chargeable  in  the  ddbut^  because  he  cannot  so  waive 
the  term  as  not  to  be  liable  for  tlie  rent  as  far  as  lie  has  assets  (£?■), 

But  for  the  rent  incurred  after  the  death  of  the  lessee,  tiic  actiou 
may  be  l)rought  either  itj  the  ddnt  or  ddiiut,  if  the  executor  enters  ; 
for  he  is  charged  as  assignee  in  respect  of  the  perception  of  the  profits, 
and  it  is  not  material  whether  he  lias  assets  or  not.  Thercrore  he  can- 
not in  such  caisc  \y[cd.i\  plcnc  (ulinhiistravU  :  ami  if  judgment  be  given 
against  him,  it  is  de  bonis  propriis. — liut  if  the  land  be  of  less  value 
than  the  rent,  he  may  plead  the  special  matter,  vi::.  that  he  has  no 
assets,  and  the  land  is  of  less  value  than  the  rent,  and  may  pray 
judgment  whether  he  sliall  be  charged  otherwise  than  in  the  dellni-t 
only.  The  lessor  has  his  election  tocliar.;c  him  either  in  the  debet  nwA 
dctinct^  or  the  dciinet  only,  in  which  latter  case  the  judgment  is  dc  bonis 
test  at  or  is  (//). 

It  seems  sulhcient  to  declare  against  the  defendant  as    exfcu'or 
without  naming  him  so  in  the  beginning  of  tlie  declaration  (/). 

Butafter  a  judgment  obtained  against   an  executor,  one  may  have 
debt  in  the  debet  and  dctinct  suggcstuig  a^/tv-rii/ay/^  and  thereby  charge 

(a)  2  Ld  Raym  Tit.  Doiis.  BfiP.  (b)  2\.A.  n«ym.  TKJ»  (<)  2Salk.  R51.  2  Str.  ':■; 

(d)  Hid  Carlh.  177.  I  Hos.  and  I'ul.  23.  (O  Knp.  V.  P.  21?.  '/;  I  \\  ih.  ic;.. 

(j)  I  S»UDJ.  1.11   I,  fA)  Ibid.  (f;  Ibid.  112.  B   " 


VM.^ 


328  Of  the  Action  of  Bebl,         [Chap.  XIII. 

him  de  bonis propr Us :  for  it  is  then  properly  his  own  debt ;  and  a  judg- 
ment against  an  executor  or  administrator  by  default,  confession,  or 
after  verdict,  is  an  admission  of  assets  to  satisfy  the  judgment :  and  if 
no  assets  are  to  be  found,  it  is  evidence  of  a  devastavit(ci). 

An  executor  may  bring  an  action  before  probate  ;  but  he  cannot  de- 
clare till  probate  be  granted,  for  Mhen  he  comes  to  declare  he  must 
produce  his  letters  testamentary.  If,  however,  the  probate  has  been 
lost,  an  exemplification  from  the  ordinary  -will  be  sufficient  (&). 

But  an  administrator  cannot  bring  an  action  till  administration  be 
granted ;  for  the  power  of  an  administrator  is  derived  from  the  ordi- 
nary, as  that  of  an  executor  is  from  the  will  (r). 

Declarations  by  executors  or  administrators  must  be  in  the  detinct 
only  ;  for  a  person  can  only  be  said  to  be  the  party  to  whom  the  money 
when  received  would  belong,  that  is,  to  the  testator's  or  intestate*s  es- 
tates, not  to  his  executor  or  administrator.  Such  is  the  case,  though 
the  rent  be  reserved  on  a  demise  which  commenced  on  the  death  of  the 
testator,  so  that  he  never  received  any  rent  {d). 

In  actions  by  an  executor,  the  declaration  should  state  "  that  the 
"  testator  was  dead  and  the  plaintiff  complete  executor.''  But  if  the 
executor  has  recovered  and  had  judgment,  and  afterwards  brings  a 
scire  facias  on  it,  such  averment  is  not  necessary  ;  though  it  would  be 
otherwise,  had  the  scire  facias  been  on  a  judgment  obtained  by  the 
testator  himself,  for  by  the  first  judgment  the  testator's  right  was  esta- 
blished, but  where  the  first  judgment  has  lieen  by  the  testator,  the 
executor's  right  does  not  appear  without  such  averment  (' ). 

So,  a  declaration  by  an  administrator  is  good,  statins:;  in  general 
''  that  administration  was  granted  to  him  by  the  bishop  of,  &c."  with- 
out saying  that  he  was  ordinary,  or  to  whom  the  right  to  grant  admi- 
nistration belonged  ;  unless  it  be  a  peculiar  jurisdiction,  in  \vhich  case 
it  should  be  set  out.  The  reason  is,  that  the  defendant  might  contest 
the  right  of  the  person  granting  administration,  or  shew  that  admini- 
stration was  ■  granted  to  another,  or  that  there  were  bona  notabilia. 
But  a  verdict  ^vould  cure  the  fault  (/). 

In  a  declaration  by  an  executor  of  an  executor,  he  should  set  out 
"  that  the  first  executor  proved  the  will :"  for  otherwise  the  plaintiff 
has  no  title;  for  if  there  liad  been  no  probate  granted  to  the  first 
executor  an  administration  rum  ^e^^rtmcniJo  annrxo  s\\o\\\i\  be  granted  of 
the  eifects  of  the  first  testator  to  the  next  of  kin.  But. this  also  would 
be  cured  by  a  verdict  [g). 

If  the  action  is  brought  by  the  assignee  of  the  reversion  against  the 
lessee  for  rent,  he  must  set  forth  the  seisin  in  fee  in  the  first  tenant, 

<5a)  1  Saunc).  216.  219.  &  237.  in.  n.  (h)  Salk.  302.  J  Str  4l2.  [c)  Esp.  N.  P.  218, 

W)  Iljiil  Cro.  £liz.  819.  (t)  1  Str.  631.  {J)  Cro.  Eliz.  870. 

fr;  2  Sir.  716. 


jhAi, 


htct.   11. J  II lure  the  Lease  is  In/   Deed.  ;{-i(» 

and  the  several  nic^nc  a«ii;nm(iil?,  down  to  liimFolf:  for  these  arc 
necessary  to  make  out  his  tith-,  and  Ihc  validity  of  these  assign- 
ments beinL,'  matter  of  law,  oni^ht  fo  l)f  set  forth  for  the  court  to 
judge  oi[a). 

For  it  is  a  i;enrr;il  rule,  that  ^^lu(l■^^  in  In-^iniplf  may  be  allet;ed 
generally,  hut  the  coinnicnccinent  of  estates-tail,  and  other  particular 
estates  must  he  shewn,  where  th{!y  u:(>  to  tUv.  t^ronnd  of  the  action; 
?)iit  not  so  where  they  arc  only  indnrenicnt :  the  life  therefore  of  the 
tenant  in  tail  or  for  life  on^ht  to  he  averred  (/-'). 

But  u  here  tlie  action  is  by  the  lessor  or  his  heir  at^ainst  the  assignee  of 
the  lessee,  tho  plaintiirnceil  not  set  out  the  several  niesne  assip;miicnts 
to  the  defendant,  for  they  do  not  lie  within  his  knowledge:  but  it  is 
Siillicient  for  the  plaintiii"  to  sd  forth  the  original  (U-niisc to  the  first 
lessee,  \\  hose  estate  and  interest  have  by  several  mesne  assic:mnents 
rome  to  tiie  dofenilant ;  and  proof  of  possession  and  occupation  bhall 
be  sufficient  to  ciiarge  hi)n  (f ). 

An  assignee  of  a  lease,  assigned  to  him  by  an  administrator,  is  not 
obliged,  it  should  seem,  to  make  ixprofcrt  in  curiam  of  the  letters  of 
administration  (f/). 

Respecting  the  vryiur.  ii  mr.y  in  addition  he  observed  that,  in  debt 
for  rent  upon  a  lease,  founded  on  tlie  privity  of  estate,  as  when 
brou'j;ht  by  the  assignee  or  devisee  of  liic  lessor  against  the  lessee;  or 
by  the  lessor  or  his  personal  representatives,  against  the  assignee  of  the 
lessee ;  or  against  the  executor  of  the  lessee,  in  the  dcOct  and  detinct, 
the  action  is  local ;  and  tho  venue  must  be  laid  in  the  county  where 
the  estate  lies. — Kut  in  debt  by  the  lessor  against  the  leisce,  or  his 
executor  in  the  delinctonly,  the  action  is  transitory,  and  the  venur  may- 
be laid  in  any  county  (r). 

The  Vlras. — The  pleas  to  an  action  of  debt  for  rent  reserved  on  a 
lease  by  deed  arc,  1.  Nil  debet ;  2.  Non  est  fuctum  ;  S.  liicns  in  ar~ 
rear;  4.  Entry  and  eviction  ;  o.  Infancy. 

Wherever  the  debt  is  founded  on  the  deed,  the  plea  cannot  con- 
tradict it :  but  there  is  a  diiTerencc  where  the  specialty  is  but  an  in- 
ducement to  the  action  and  matter  of  fact  is  the  foundation  of  it,  for 
there  nil  debet  is  a  good  plea  :  as  in  debt  for  rent  by  indenture  for  the 
plaintiff  need  not  set  out  the  indenture.  Therefore  the  defendant  may 
plead  nil  debet  to  debt  for  rent  reserved  by  indenture,  whicli  he  could 
not  do  in  the  case  of  a  bond  ;  because  an  indenture  of  lease  does  not 
acknowledge  an  absolute  debt  as  a  bond  does,  for  the  debt  ari<:es  frora 
the  enjoyment  of  the  thing  denused,and  so  is  but  in(luceniei;t  (/). 

^7/  debet  is  a  good  plea  in  debt  for  rent  on  a  lease  by  indenture,  for 

e»)  Esp    N  r.  220.  (6;  ibid  (c)  IbW 

f,l)  3  W;i».  3.  (c)  TiiWs  rract. 

:/)  3L<J  R»ym,  I59X  Tjp.  N.  P  T:"^.  i  Tid<ra?n:\f 


330  Of  tic   Action  of  Debt,  [Chap.  XIII. 

the  foundation  of  the  action  is  a  mere  fact,  namely,  the  arrears  of  rent, 
and  the  indenlure  is  held  to  be  only  inducement,  which  the  plaintiff 
need  not  set  out  in  his  declarations  (a). 

Bat,  though  the  defendant  may  plead  nil  debet,  he  cannot  give  in 
evidence  under  it,  that  the  plaintiff  had  nothing  in  the  tenements  (b). 

Though  in  debt  for  rent  on  a  den.ise  by  indenture,  it  is  not  ne- 
cessary to  declare  that  it  was  by  indenture,  but  "  quod  cum  dbnisissct" 
generally  is  sufficient;  yet  if  the  defendant  pleads  nil  habuit  in  tenc- 
inentis,  it  is  said  to  he  prima  facia  a  good  plea,  because  no  estoppel  ap- 
pears upon  the  record  (r)  ;  and  if  the  plaintiff  replies  that  he  had  a 
sufficient  estate  to  make  the  demise,  he  loses  the  benefit  of  the  estoppel, 
and  as  he  will  not  rely  thereon,  but  will  reply  habuit,  the  jury  shall 
find  the  truth  ;  but  if  he  replies  (as  he  ought  to  do)  that  the  demise 
■was  by  indenture,  and  conc\udes  undc  petit  judicium,  if  the  defendant 
shall  be  admitted  to  plead  the  plea  against  his  own  acceptance  of  the 
lease  by  indenture,  the  defendant  shall  be  stopped  ((f). 

But  where  the  declaration  states  the  lease  to  be  by  indenture,  the 
plaintiff  need  not  reply  the  estoppel,  but  may  demur,'  because  the 
estoppel  appears  on  the  record  :  otherwise,  as  is  before  mentioned,  if 
the  fleclaration  be  "  quod  cum  dimisisset,^'  without  saying  that  it  was 
by  indr;ntuie  (*). 

In  debt  on  bond  conditioned  for  the  payment  of  rent  reserved  upon 
a  demise  according  to  certain  articles,  the  defendant  is  estopped  to  say, 
that  he  had  not  any  thing  in  the  land  demised  by  the  articles  (/ ) . 

Nil  habuit  in  tenementis  has  been  held  to  be  a  good  plea  on  demise 
by  deed  poll,  because,  as  to  the  lessee,  it  is  no  estoppel.  It  seems  in- 
deed settled  that  it  is  not  admitted  to  be  pleaded  by  a  lessee  in  any 
case  where  occupation  is  enjoyed:  for  the  Court  will  not  permit  a  te- 
nant to  impeach  his  landlord's  title  :  nor  indeed  will  an  action  for  rent 
lie  where  the  title  is  in  dispute.  So,  a  tenant  cannot  set  up  the  title 
of  the  mortgagee  against  the  mortgagor  :  because  he  holds  under  the 
mortgagor  and  has  admitted  his  title  [g). 

But  a  tenant  is  not  at  all  events. estopped  to  deny  his  landlord's  title ; 
the  estoppel  exists  only  during  the  continuance  of  his  occupation  ;  and 
if  he  be  ousted  by  a  title  paramount,  he  may  plead  it  (A). 

If  in  a  lease  special  days  of  payment  are  limited  by  the  reddendum, 

the  rent  must  be  computed  according  to  that,  and  not  the  habendum  (i). 

In  debt  for  rent,  w  here  the  plaintiff"  had  declared  for  more  than  was 

due  upon  his  own  shewing,  upon  nil  debet  pleaded,  he  had  judgment 

and  damages  and  costs,  notwithstanding  ;  and  it  being  moved  in  arrest 

(a)  2  SauDd.297.  n.  1.  (b)  2  Ld.  Raym.  1551.'  Salk.  277.  6  T.  R.  62.  s.  p.  7  T.  R.  537. 

6T.  R.  6Z    G  Mod.  258.  2  Ld.  Raym.  1051,4.  I  Saund.27G.  ii.  1.  (c)  Ibid. 

(d)  Bu  I.  N  P.  170.  2Ld.  Raym.  1551.  (c)  1  Salk.277.  1  Saund.  25  n.  4. 

Cf)  Cro.  Eliz.  3C2.  {g)  3  Lev.  UG.  Esp.  N.  P.  233.  5.  5  T.  B.5.  MSS.   I  T.  B,  780.  n.  ». 

<fcj  3T.  R.41!.  (0  Salk.  lU 


Sett.  II.]  nhcrc  the  Lease  is  hy  Derd.  331 

j&judgnicnt  that  the  plaiiitiil  had  madr  an  entire  demand  for  rent  to 
a  certain  sum  uhen  it  appejired  that  he  coidd  not  have  an  action  for  so 
niucli,  yet  llie  Court  hehl  that  he  \\\'\^\\\  release  the  sur^jhis  and  dam- 
ages, and  take  judgment  for  the  residue  («). 

If  tlic  IcFsor  accepts  rent  due  ut  the  last  day  of  p.iynnrit,  and  give?  a 
discharge  thereof  and  acquittance,  tliis  ^hall  diMhurge  all  precetling 
arrears,  and  this  urould  be  good  evidence  on  nil  debet ;  for  it  is  not  pre- 
sumable that  a  man  uould  give  a  receipt  for  the  last  gale  of  rent,  wJien 
the  former  gales  were  unpaid  (6). 

So,  if  the  defendant  pleads"  levied  i)y  distress"  and  so  nil  debet,  he 
may  giro  a  release  or  payiuoit  in  evidence :  ami  even  though  there 
never  was  any  distress  made,  yet  is  tlic  evidence  of  payment  or  the  re- 
lease good  ;  for  the  iifsue  is  on  the  debt,  and  the  defendant  proving  it 
discharged,  by  any  means, supi>orts  this  issue  {(). 

If  the  lessor  has  covenanted  to  repair,  and  bring  debt  for  liis  rent, 
it  seems  that  the  lessee  may  j)lead  that  lie  expended  the  rent  in  neces- 
sary repairs,  and  so  owes  nothing  {d)  ;  but  he  must  plead  this  specially, 
and  cannot  give  it  in  evidence  on  the  general  issue,  for  he  might  have 
covenant  on  it  against  the  lessor ;  wherefore  also,  if  the  lessor  had 
brought  covenant  for  rent  instead  of  del>t,  the  lessee  could  not  plead 
expenditure  in  reparations  at  all,  the  remedy  being  reciprocal  (r). 

However,  where  there  is  an  express  covenant  in  the  same  indenture, 
that  the  lessee  may  deduct  for  charges  and  repairs,  there  clearly  the 
defendant  may  plead  it  in  bar  to  debt  for  rent  (/). 

So,  the  defendant  may  plead  iwn  es(  faetum  ;  for,  denying  the  exist- 
ence of  the  deed,  there  can  be  no  estoppel  (cr). 

If  the  defendant  plead  non  est  fartxnn,  the  plaintiff  must  prove  the 
execution  of  the  deed,  and  proof  that  one  who  called  himself  i^.  exe- 
cuted it,  is  not  suflicient,  if  the  Avitness  did  not  know  it  to  be  the  de- 
fendant (^). 

Under  this  jjlca,  the  defendant  may  give  in  evidence  any  thinj^  that 
proves  the  deed  to  be  avoided,  tliough  it  were  delivered  as  his  deed  ; 
for  the  plea  is  in  the  present  tcn<^e,  and  if  it  be  avoided,  it  is  not  now 
his  deed  (/). 

Kut  ii  the  defendant  plead  rasure  Sr  sic  non  est  fnclum,  nothing  else 
is  evidence  but  rasure  {k). 

hiens  in  arrcre  is  a  good  plea  in  debt  for  rent,  though  it  would  be 
had  in  covenant  for  rent ;  for  in  corenant  such'  plea  confesses  the  cove- 
nant broken,  and  got."  only  in  mitigation  of  damages  (/).  Therefore, 
where  the  defemiant  pleaded  "■  that  notlung  of  the  aiit  ib  in  arrcar 

(n;5  Mfid.  2M.  (hi  Flip   N.  P.lCi.  Co.  Ijt.  :iTa  t\  :  Co  Ci  1.  1  i.i  4i 

{€)  Salk.  3H4.  Cro.  ElU   MO.       (ii>.IM(l  asu.        (<}  Bull.  H.  T.  I7v  3  Mod.  bu  I  Ld  Kajrm.  i!% 
6T.  ».<50.  CO  I  Liv.bLV  Eij.   N   P.;a4-     '  •      IfJlbiJ  Bull  N.  J*.1T0 

(.A)lUjd,  !-■  .     r.    '  ilia'.'':,!*  lOK-ip  N.  P  115. 


332  Of  the  Action  of  Debt,  [Chap.  XIII. 

«  and  unpaid  as  by  the  declarations  is  alcove  supposed,"  it  was  held  to 
be  the  same  as  if  he  had  said  ////  debet,  and  that  it  related  to  the  time 
of  the  action  l)roiig]it,  as  well  as  that  of  the  plea  pleaded,  for  if  the 
rent  was  due  and  is  not  at  the  lime  of  the  plea,  it  could  not  have 
ceased  to  be  due,  but  by  the  })laintitr's  accepting  it;  and  if  so,  he 
waives  the  action,  thougii  it  w  as  well  brought  at  the  time  {((). 

Under  this  plea,  the  defendant  may  deny  the  validity  of  the 
lease  {b). 

The  defendant  may  also  plead  payment  at  or  after  the  day ;  for  ac- 
ceptance of  rent  may  Ije  pleaded  in  bar  to  debt  for  rent,  though  not  to 
a  recovery  in  covenant  (r). 

If  the  defendant  plead  a  tender  on  the  land  at  the  day,  he  must 
make  a.profert  of  the  money  (cO- 

Where  the  plaintiff  gave  a  note  of  hand  for  rent  in  arrear,  and  took 
a  receipt  for  it  Avhen  paid,  the  defendant  afterward  distrained  for  the 
rent,  and  the  plaintill'  brought  trespass :  it  vas  holden,  that  notwith- 
standing this  note,  the  defendant  might  distrain  ;  for  it  is  no  alteration 
of  the  debt  till  payment  (e). 

So,  if  a  landlord  accept  a  bond  for  rent,  this  does  not  extinguish  it, 
for  the  rent  is  higher,  and  the  acceptance  of  a  security  of  an  unequal 
degree  is  no  e:stinguifchment  of  a  debt.  But  a  judgment  obtained  upon 
a  bond  would  be  an  extinguishment  of  it  (/). 

Entry  and  eviction  of  the  whole  or  any  part  of  the  premises  demised, 
is  a  good  plea  in  bar  to  an  action  of  debt  for  the  rent. 

It  must  be  a  tortious  eiitry  and  eviction,  or  expulsion,  to  occasion  a 
suspension  of  the  rent ;  a  plea  that  stales  a  mere  trespass  will  not  be 
sufficient  {g) :  for  if  the  lessor  enter  by  virtue  of  a  power  reserved,  or 
as  a  mere  trespasser,  yet  if  the  lessee  be  not  evicted,  it  will  be  no  sus- 
pension of  the  rent  (/<). 

Therefore,  where  the  lessee  pleaded  in  bar  that  the  lessor  entered  on 
the  premises  arid  broke  -and  pulled  down  the  ceiling  of  a  summer- 
house  and  tore  up  the  benches,  whereby  the  lessee  was  deprived  of 
the  use  thereof,  without  any  eviction  being  stated,  it  was  held  to  be 
bad  (0- 

Debt  was  brought  upon  a  lease  for  years  of  land  in  D.  for  rent 
arrear  for  a  year  and  a  half  at  the  Annunciation,  19  /.  1.  The  defend- 
ant pleaded,  and  confessed  the  lease  and  reservation;  but  further 
l)lcaded,  that  the  lessor  and  all  those  whose  estate,  Src  had  common 
in  ten  acres  in  E.  always  for  their  beasts  levant  et  couchant  upon  the 
said  tenements,  £very  year  after  corn  sown,  from  Jugust  7,  until  the 
corn  reaped  and  carried  away ;  and  that  before  any  rent  was  due,  the 

W  Cowp.  S90.  fil  Cto.  F.liz.  398.  (c)  1  Tidd'a  Pract.  7  Mod.  lOB. 

(d)  1  Ld.  Raym.  8?-.  (<■)  HUM.  i\.  P.  182.  (/;  lUid.  (g)  Coicp.  212. 

(A)  Bull.  N.  P.  177.  («)Cowp.  2.J2. 


Sect.  II.]  ivkcre  the  Lease  is  hi/  Dad.  333 

lessor  inclosed  the  said  ten  acres,  wherein  he  ouglit  to  hiivc  liad  hi*; 
(  oninion,  with  hedi;es  and  ditches,  and  ejected  him,  so  as  he  might  not 
use  his  common,  and  thereby  his  retit  was  extinct:  whereupon  it  was 
demurred,  (among  other  ol)jt'ct ions)  that  the  land  inclosed  is  notallcdg- 
ed  to  l)c  sown  with  corn  ;  ctherwL'^c,  l)y  his  prescription,  he  is  not  to 
have  conunon,  and  the  Court  hchl  that  the  pica  was  ill  (a). 

The  plea  must  state  an  eviction  or  expulsion  of  the  lessee  by  tiic  les- 
sor, and  a  keeping  him  out  of  posscsbion  until  after  the  rent  became  due  ; 
etlicruisc  it  will  be  bad  (6). 

In  debt  for  rent,  it  is  ojjtional  for  the  defendant  to  jjlcad  the 
entry  and  expulsion  by  the  plaiuliir,  or  to  give  it  in  evidence  upon  nil 
debet  ((•). 

Infancy  is  anotlicr  good  plea  in  del)t  for  rent :  l)ut  a  lease  made  to 
an  infant  is  not  void,  but  voidable  only  ;  and  if  it  be  beneficial  to  him, 
ke  is  liable  to  an  action  for  the  rent  reserved  {d). 

Therefore,  where  to  debt  for  rent,  the  defendant  pleaded  infancy  at 
the  time  of  the  lease  made  ;  on  demurrer,  the  Court  held  tliat  tlie  lease 
■was  voidable  only  at  the  election  of  the  infant,  manifested  by  waiving 
the  land  before  the  rent-day  came ;  but  he  not  having  done  so,  and 
being  of  age  before  the  rent-day  came,  it  was  deemed  an  election,  and 
the  plaint  ifl'  had  judgment  (t). 

A  set-off  may  also  l)e  pleaded  to  a  general  issue  in  this  action. 

Touching  this  pica,  it  was  fust  given  by  stat.  G.  2.  c.  22.  which 
enacts.  That  where  there  are  nuitual  debts  between  the  plainliil'  and 
defendant,  or  if  either  party  sue  or  are  sued  as  executors  or  admini- 
strators, where  there  are  umtual  debts  between  the  testator  or  tlie  in- 
testate and  the  other  party,  one  debt  may  be  set  oil"  against  the  other, 
and  such  matter  given  in  evidence  on  the  general  issue,  or  pleaded 
in  bar  ;  but  if  intended  to  be  given  in  evidence  on  the  general  issue, 
notice  must  be  given  of  the  particular  sum  intended  to  be  set  oil",  and 
on  what  account  it  has  become  due. 

The  stat.  8  G.  2.  c.  4.  further  enacts,  That  mutual  debts  may  be 
set  oiT  against  each  other,  notwithstanding  such  debts  were  of  different 
natures,  unless  in  cases  where  either  of  the  debts  accrued  by  reason  of 
a  penalty  contained  in  any  bond  or  specialty,  in  which  case,  the  debt 
intended  to  be  set  off  jnust  be  pleaded  in  bar,  and  in  which  piia  shall 
be  shewn  how  much  is  truly  due  on  either  siile  ;  and  in  case  the  plain- 
tiff shall  recover,  judgment  shall  be  entered  for  no  more  than  appear* 
to  be  due  after  one  debt  set  against  another. 

The  general  issue  mentioned  in  the  statute  must  be  underitood  to 
mean  any  general  issue. 

(a;  Cro.  Jae.  680.  (6i  1  hs.iRd  VXH.  d.  3. 

(r)  1  Mod.  33.  US.  (rf)  CiV.  J»c.  330. 

;<)  Ibid. 

4t1t 


331  Of  the  Action  of  Dell,  SCc,        [Chap.  XIIL 

Willi  reppect  to  the  statute  of  limitations,  although  the  words  of 
that  statute  are  general  as  to  the  limitation  of  all  actions  of  debt  for 
arrearages  of  rent,  yet  it  has  been  adjudged  that  an  action  of  debt  for 
the  arrearages  of  rent  reserved  by  indenture  was  not  within  the  mean- 
ing of  the  said  statute  («). 

With  respect  to  a  release,  it  is  said  that  it  cannot  be  given  in  evi- 
dence without  pleading ;  for  it  being  a  discharge  by  deed,  ail  legal 
solemnities  must  be  shewn  to  the  Court.  But  this  seems  to  be  errone- 
ous, for  we  have  seen  that  under  the  plea  of  nil  dcl/et,  a  release  may  be 
given  in  evidence  ;  and  a  release  may  be  given  in  evidence  under  any 
general  issue  {b). 

A  release  of  all  demands  will  not  operate  to  release  rent  before  it  be^r 
comes  due,  for  then  there  is  no  demand  ;  but  it  will  release  rent 
then  due  (r). 

Therefore  if  a  man  lets  land  to  another  for  a  year,  yielding  the  rent 
at  Michaelmas,  and  before  Michaelmas  the  lessor  releases  to  the  lessee 
all  actions,  yet  after  the  Feast  the  lessor  may  have  his  action  for  rent, 
for  the  release  docs  not  discharge  it ;  for  the  rent  is  no  debt  till  the 
day  on  which  it  is  payable,  as  it  is  i)ayable  out  of  the  profits  of  the 
laud,  and  if  the  lessee  is  evicted  before  the  day,  no  rent  is  due  ;  but 
the  lessor  may  discharge  the  lessee  of  the  rent  before  the  day  by  a 
special  release  {d). 

If  the  defendant  insists  that  the  lease  declared  on  is  not  the  plain- 
tiff's,  the  plaintiff  must  shew  that  it  was  made  by  one  who  had 
authority  from  him  to  execute  it  in  his  name,  and  the  authority  need 
not  be  produced.  But  the  lease  must  be  made  and  executed  in  the 
name  of  the  principal  (c). 

In  debt  for  rent  by  husband  and  wife,  upon  a  lease  by  her  and  her 
first  husband,  it  is  a  good  plea  that  her  first  husband  was  sole  seised,, 
and  that  she  had  nothing  in  the  land  (/). 

As  to  the  evidence  on  the  part  of  the  defendant,  if  he  plead  nil 
debet,  he  may  give  the  statute  of  limitations  in  evidence  ;  for  the  sta- 
tute is  in  the  present  tense,  and  so  makes  it  no  debt  at  the  time  of  plead- 
ing ig)- 

So,  upon  the  same  issue,  he  may  give  entry  and  expulsion  in  evi- 
dence (/i). 

The  jury,  besides  finding  the  debt,  ought  to  give  damages  for  the 
detention  of  it,  which  are  usually  one  shilling,  though  under  particular 
circumstances  they  may  be  more. 

In  debt  for  rent  money  may  be  brought  into  Court  (z). 

Though  the  debt  is  by  specialty,  yet  if  it  depends  upon  something 

(a)  1  Saund.  3B.  (6)  Dyef,  28.  12  H.  8.   1  Salk.  284.  Cro.  Eliz.  140.  (c)  Salk.  678. 

{'/)  Co.  Lit.  232.  b.  (t)  Bull.  X.  J',  177.  (/)  Cro.  Eliz.  70a  (g)  £»':-.  .-ITS. 

<h)  Hirll.K.  I'.  ;77.  (-,-  J  TidJ's  I'ract.  482.  502.  SaJk.  C5'J. 


Sort.  TIF.]  Of  tin  Arliun  of  Cnvcnnnf,  t'^'c  330 

extrinsic,  ds  rent  for  cxaiuplc,  tlic  pl.iiiitill'  may  liavc  a  verdict  for 
what  is  rcully  di  c,  though  more  is  dcmaiidt-d. 

Therelorc  in  an  action  of  dtht  on  a  lease  for  rent,  at  2/.  135.  a  year, 
if  the  plaint  ill  declare  for  J(K)/.  due  for  so  many  years'  arrear,  and  it 
appears  that  a  mistake  has  been  made,  anil  that  lie  declared  for  8/. 
too  miicli,  yet  after  verdict  if  he  release  the  ft/,  he  shall  have  judgment 
for  the  residue.  So,  if  he  demand  more  than  upon  his  own  shewing 
is  due,  he  may,  after  demurrer,  remit  the  overplus,  and  enter  juilgmeiit 
for  the  rest  (d). 

But  as  a  sum  certain  is  always  claimed,  the  verdict  must  go  to  the 
whole  of  it  ;  that  is,  il  the  jury  find  part  to  he  due,  they  must  find  nil 
debet  as  to  tiie  rest  (b). 

If  there  be  judgment  against  two,  and  one  of  them  dies,  the  plaint ilT 
may  have  execution  against  the  survivor  (r ). 

Of  Df'bt  on  Bond  for,  ike. — In  an  action  for  debt  on  bond  for  per- 
formance of  covenants,  the  breach  nuist  be  as  particular  as  the  cove- 
nant (</). 

So,  it  was  held,  that  the  defendant  in  plead ins^  to  such  action  cove- 
nants performed,  must  shew  the  indcntxirc  from  the  counterpart.  How- 
ever, as  to  such  particularity  being  requisite  vide postca  (r). 

In  a  debt  on  l)ond  to  perform  all  covenants,  8cc.  a  breach  cannot  be 
assigned  for  non-payment  of  refit,  without  shewing  a  demand,  except 
perrormancc  be  pleaded  (/)• 

A  demurrer  to  a  breach  of  covenant  after  pica  of  covenants  performed 
confesses  the  breach,  and  contradicts  the  plea  (t:)- 

Yet  to  a  plea  of  i)erformance  to  debt  on  boiul  for  breach  of  cove- 
nants, a  leplication  of  non-payment  of  rent,  without  stating  a  demand, 
is  i;ood  ;  for  a  denial  of  such  demand  would  have  been  a  departure 
from  the  i)lea  (/(). 

Where  performance  is  pleaded,  and  matter  of  excuse  is  afterwards 
set  forth  in  the  rejoinder,  it  is  a  departure;  it  should  have  been  pleaded 
in  bar  (/). 


Section  III.     Of  the  Action  of  Covenant ^  nhcir  tin    Iausl' 

is  h\)  Dud. 

An  action  of  covenant  also  lies  by  the  landlord  for  the  recovery  of 
his  rent,  if  the  demise  be  by  deed  ;  for  covenant  is  an  action  that  lies 
for  the  recovery  of  damages  for  the  breach  of  any  agreement  entered 
into  by  deed  between  the  parties  (A)  :  but  the  agreement  must  always 

(a)8  Moil.  2lal2  .Mod.  93.  s  c.  ft;  Co.  Lit.  227.  *.  (c;  Sir  T.  R«vra.2C. 

(<')  II  Mnd  ;il2.  (c)  fi  Mod.  237.  (/)  Oou)?.  007,  iic.Cro.  Eliz.  KB.  Cj^  »Wd  C:^. 

fAjCro.Car.  76.  l»)S4Jk22K  C*J  Esp.  N.  P.  2CG. 


336  Of  the  Action  of  Covenant,        [Chap  XIIL 

be  by  deed,  though  whether  it  be  by  indenture  or  deed-poll  it  equally 
lies  {a). 

If  the  agreement  be  by  indenture,  it  is  sufTicient  in  order  to  main- 
tain this  action  against  the  covenantor  that  he  has  sealed  it  and  delivered 
it  to  the  covenantee,  though  the  covenantee  never  sealed  it  (6). 

Neither  the  Avord  "  covenant,"  nor  any  particular  form  of  words, 
is  necessary  to  constitute  a  covenant  in  deed  ;  for  any  form  of  expres- 
sion under  the  hand  and  seal  of  the  parties,  importing  an  agreement, 
will  support  this  action,  as  amounting  to  a  covenant  (r). 

Thus  in  the  case  of  a  lease  of  lands,  in  which  are  the  words  "  yield- 
**  ing  and  paying"  so  much  rent,  this  is  an  agreement  for  the  payment 
of  rent,  which  amounts  to  a  covenant,  and  this  action  lies  for  the  non- 
payment (rf).  So,  if  the  lease  be,  yielding  such  a  rent,  free  and  clear 
of  all  manner  of  taxes,  charges,  and  impositions  whatsoever,  covenant 
lies  if  the  lessee  do  not  pay  the  whole  rent  discharged  of  all  taxes,  be- 
fore or  afterwards  imposed  (c). 

The  covenant  to  pay  rent  is  absolute,  and  if  the  tenant  sustains  any 
injury,  he  may  have  his  remedy,  but  cannot  set  it  off  against  the  de- 
mand for  rent  (/). 

As  where  in  covenant  for  a  year's  rent,  from  Michaelmas  1725  to 
1726,  the  defendant  shewed  upon  oyer  of  the  lease,  that  he  as  lessee 
by  covenant  was  bound  to  repair  in  all  cases  except  fire^  and  then  pleaded 
that  before  Michaelmas  1725  the  premises  had  been  burned  down,  and 
not  rebuilt  by  the  plaintiff  during  the  whole  year,  so  that  he  hcid  no 
enjoyment  for  the  whole  time  claimed:  on  demurrer,  the  plaintiff  had 
judgment  notwithstanding  {g). 

Respecting  executors  and  administrators,  as  in  debt  so  in  covenant 
for  rent  incurred  after  the  death  of  the  lessee,  the  lessor  has  his  elec- 
tion to  charge  the  executor  either  as  executor,  in  which  case  the  judg- 
ment must  be  de  bonis  testatoris,  or  as  assignee  w  ithout  naming  him 
executor,  but  stating  generally  in  the  declaration,  that  the  estate  of  the 
lessee  in  the  premises  lawfully  came  to  the  defendant,  in  which  case  the 
judgment  shall  be  de  bonis propriis  (/(). 

The  assignee  of  a  term  is  bound  to  perform  all  the  covenants  annexed 
to  the  estate  ;  as  if  ^.  leases  to  D.  and  B.  covenants  to  pay  rent  during 
the  said  term,  and  B.  assigns  to  C,  C.  is  bound  to  perform  the  cove- 
nants during  the  term  though  the  assignee  be  not  named  ;  because  the 
covenants  run  with  the  land,  being  made  for  the  maintenance  of  a  thing 
in  esse  at  the  time  of  the  lease  made  (/). 

An  as!-ignee,  however,  is  liable  only  in  respect  of  his  possession,  and 
not  for  a  breach  before  assignment  (A). 

(«)  F.  N.  R.  145.  L.  (i)  Cro.  Eliz.  212.  (c)  Esp.  N.  P.  267.  Doug.  766. 

Cd)Ibid.         (e)  Caith.  135.  (/)  2  Str.  763.  1  T.  R.  319.  (^;2  Str.  763.  6  T.  R.  62. 

(A;  1  Saund,  R.  n.  I.  (\)  Bac.  AUr.  tU- "  Covenant."  (E.  3.)  (t)  Doug.  134.  Salt.  199. 


Sect.  III.]  7vhcrr.   the   Lrnsc  is  hj  Deal  3:^7 

So,  if  a  tnnnt  who  is  chari;(:il)h^  with  Iho  rent  assign  ovrr  his  inter- 
est in  the  huul,  the  assi^^iice  is  churi^eable  w  itli  the  penalty  for  arrcart. 
incurred  in  his  own  time  {o). 

Also,  if  a  man  leases  for  year?,  and  tlic  lessee  covenants  for  him 
and  assigns,  to  pay  the  rent  so  loni;  as  he  and  they  shall  have  posses- 
sion of  the  thing  let,  and  tlic  Irsece  assigns,  the  term  expires,  and  the 
assignee  continues  the  possession  afterwards;  an  action  of  covenant 
Mill  lie  against  him  for  rent,  behind  after  the  expiration  of  the  term, 
for  though  lie  is  not  an  assignee  strictly  according  to  the  rules  of  law, 
yet  he  shall  be  accounted  such  an  assignee  as  is  to  perform  the  cove- 
Bants  {b). 

As  to  the  question  how  far  actual  possession  is  necessary  in  order  to 
enable  the  lessor  to  maintain  covenant  against  the  assignee,  it  has  been 
decided  that  by  the  assignment  the  title  and  possessory  right  pass,  and 
the  assignee  l)ecomes  possessed  in  law:  and  it  is  immaterial  whether  it 
be  an  assii^nment  of  the  usual  kind,  or  by  way  of  mortgage  ;  for  the 
principle  upon  which  the  assignee  is  liable  is  in  respect  of  his  having 
the  legal  estate.  Therefore,  a  mortgagee  though  out  of  possession  was 
lield  liable  as  assignee,  notwithstanding;  and  Lord  Kcw/oti  declared 
that  he  would  overrule  the  case  of  Luton  and  Jacques  {Dougl.  455.) 
vilhout  the  least  reluctance  (r). 

Hut  an  assignee  is  only  liable  while  in  possession  if  he  assign 
over  before  a  breach  ;  therefore  thougli  his  assignee  has  not  taken 
possession,  yet  he,  (the  first  assignee)  is  not  liable  to  any  action  oi" 
covenant (d). 

Thus,  Asherc  the  defendant  was  the  assignee  of  the  original  lessee, 
and  covenant  being  brought  against  him  for  rent  reserved  on  the  lease, 
he  pleaded,  That  before  the  rent  became  due  he  had  assigned  all  his 
interest  in  the  premises  to  one  Rigg,  who  by  virtue  of  such  assign- 
ment, entered  and  was  possessed:  the  plaintiiT  replied,  that  at  the 
time  when  the  rent  became  due,  the  defendant  remained  and  continued 
in  possession  cibsj.  hoc.  That  Jiis:^^  had  entered,  fl'c.  and  on  denmrrer 
it  was  held,  that  the  assignment  being  admitted,  the  actual  possession 
was  not  sufficient  to  charge  the  first  assignee,  the  possession  in  law  be- 
ing in  tiie  second  assignee  by  virtue  of  the  assignment  (<"). 

So  also,  the  assignee  of  a  term  declared  against  as  such,  is  not  liable 
for  rent  accruing  after  he  has  assigned  over,  though  it  be  stated  that 
the  lessor  was  a  party  executing  the  assignment,  and  who  agreed  there- 
by, tiiat  the  term,  which  was  determinai)le  at  his  option,  should  be 
absolute  (/"). 

But  an  action  of  covenant  cannot  be  maintained  against  an  under- 

(a)  Cro.  Eli7..  383.  (b)  B»c.  Abr.  tit.  "Covenant"  [E    3] 

(e)  Stone  r.  Evins.  anit  1I3.  frf)  <  "•  t*  !'■  21. 

(ODuJS-  461.  a.   I.  (/)Uid.  764. 


338  Of  the  Action  of  Covenant,     [Chap.  XIII. 

lessee  ;  for  it  is  clearly  settled,  and  is  agreeable  to  the  text  of  Lijttleton, 
that  the  action  cannot  be  maintained,  unless  against  an  assignee  of  the 
whole  terra  (a). 

But  the  lessee  being  a  party  to  the  original  contract,  continues  always 
liable,  notwithstanding  any  assignment  (^)  ;  for  it  is  extremely  clear, 
that  a  person  who  enters  into  an  express  covenant  in  a  lease  contiunes  lia- 
ble on  his  covenant  notwithstanding  the  lease  be  assigned  over  (c). 

For  the  lessee  has  from  his  covenant  both  a  privity  of  contract  and 
of  estate;  and  though  he  assigns,  and  thereby  destroys  the  privity  of 
estate,  yet  the  privity  of  contract  continues ;  and  he  is  liable  in  conve- 
nant  notwithstanding  the  assignment  {d).  But  the  assignee  comes  in 
oniy  in  privily  of  estate,  and  is  therefore  liable  only  while  in  posses- 
sion ;  that  is,  whilst  he  has  the  legal  estate,  except  in  the  case  of  rent, 
for  which  though  he  assign  over  he  is  liable  as  to  the  arrears  incurred 
before  (it  is  said),  as  well  as  during  his  enjoyment  ;  and  such  assignee 
was  made  liable  in  equity,  though  the  privity  of  estate  was  destroyed 
at  common  law  [e). 

Covenant  lies  against  the  assignee  of  a  lessee  of  an  estate  for  a  part 
of  the  rent ;  as  in  such  case  the  action  is  brought  on  a  real  contract  in 
respect  of  the  land,  and  not  on  a  personal  contract :  and  in  case  of 
eviction,  the  rent  may  be  apportioned,  as  in  debt  or  replevin. — But  it 
is  otherwise  in  covenant  against  the  lessee  himself,  who  is  liable  on  his 
personal  contract  (/). 

The  Declaration. — With  respect  to  the  pleadings  on  the  part  of  the 
plaintilT,  the  declaration  in  an  action  of  covenant  should  set  out  ex- 
pressly that  the  covenant  was  made  by  deed.  Per  scriptum  factum  apud 
W'  concessit y  does  not  import  a  deed ;  neither  does  an  allegation  that  the 
party  covenanted  j!>er  quoddam  scriptum:  and  if  the  instrument  is  set  out 
upon  error  brought,  and  concludes  with  "  in  witness  whereof,  I  have 
hereunto  set  my  hand  and  seal,"  it  will  not  make  good  this  defect  {g). 
This  action  being  founded  on  a  deed,  the  plaintiff  need  not  set  forth 
more  than  that  part  which  is  necessary  to  entitle  hiju  to  recover  :  if  he 
states  what  is  impertinent,  it  is  an  injury  to  the  other  party,  and  may 
be  struck  out  and  costs  allowed,  upon  motion.  When  it  is  said  that 
the  plaintiii  need  only  set  forth  that  part  of  the  deed  on  which  his  ac- 
tion is  founded,  it  is  not  meant  that  even  that  is  necessary  :  for  he  is 
rot  bound  to  set  forth  the  material  part  in  letters  and  words ;  it  will  be 
sufficient  to  state  the  substance  and  legal  eilect ;  that  is  shorter,  and  not- 
liable  to  misrecitals  and  literal  mistakes  :  but  what  is  alledged  should 
be  proved  (//). 

The  proi)or  mode,  therefore,  of  declaring  in  covenant,  is  to  set  out 

(a)  Doug.  187.  453.  Store  v.  Evans,  supra.  (h)  Doug.  460-  (O  ■*  T.  R-  98- 

(d)  Doug.  460.  («)  Bac.  Abr.  tit.  "  Covenant."  [E.  4.]  (/J  2  East's  H.  ST^. 

(f )  2  titr.  814.  (A)  1  Str.  230.  Doug.  667. 


Sect.  III.]        nherc  the  Lease  is  hi/  Dad.  339 

that,  by  indenture,  certain  premises  therein  mentioned  wrre  demised, 
without  stating;  them  particularly,  subject  anions^ other  thini;s  to  a  pro- 
viso, sctlini;  out  the  substance  of  the  covciiaut,  and  the  breach  (0- 

In  an  action  for  mi'-management  of  a  farm,  it  is  cnou:;h  to  slate  tiiat 
part  of  tlic  instrument  truly  whicli  applies  to  the  breach  complained 
of,  iftlmtwliich  is  omitted  do  not  qualify  that  uhich  i?  staled  (A). 

In  declaring  against  an  assignee,  tlic  plaintilV  may  declare  against 
liim  generally  as  assignee,  without  setting  out  the  intermediate  assign- 
ments ;  for  he  may  not  know  tlicni  perhaps :  and  such  is  the  case, 
though  tlie  plaintill" himself  is  an  assignee  (r). 

So,  where  the  action  is  against  the  original  lessee,  tlie  breach  need 
not  extend  to  assigns ;  for  the  Court  will  not  presume  an  assignment  (W). 
The  distinction  proceeds  from  the  difference  that  suf)sists  between 
the  case  where  a  thing  is  to  be  done  by  a  person  or  his  assigns,  and 
that  in  which  it  is  to  be  done  to  a  person  or  his  assigns :  in  the  first 
place,  the  breach  must  be  assigned  in  the  disjunctive,  that  it  was  not 
done  "  either  by  the  one  or  the  other,"  but  in  the  last  case,  it  u  ill  be 
intended  y;r/mrtA«c/r  to  be  done  to  the  person  himself;  but  if  he  assign 
his  interest,  then  it  may  be  done  to  tlie  assignee,  and  if  he  did  assign 
over  his  interest,  it  ought  to  be  sliewn  on  the  other  side. 

Where  the  action  therefore  is  brought  bij  the  assignee  of  a  term,  tlic 
plaintiff  must  set  forth  in  his  declaration  all  the  mesne  assignments  of 
the  term  down  to  himself;  for  he  is  privy  to  them,  and  therefore  shall 
not  be  allowed  to  plead  generally  that  the  lessee's  estate  of  and  in  tlic 
demised  premises  came  to  him,  or  to  some  otlier  person  under  whom 
he  claims,  by  assignment  (c). 

But  where  an  action  is  brouglit  afjainsf  an  assignee  of  a  term,  such 
general  form  of  pleading  is  suliicicnt,  for  the  plaintiff  is  a  stranger  to 
the  defendant's  title,  and  therefore  cannot  set  it  out  particularly.  It  is 
not  suflicicnt,  however,  to  say  that  the  tenements  came  to  the  defend- 
ant by  assigrmient,  but  it  must  ])e  shewn  that  he  is  assignee  of  tlie 
term  ;  for  othewise  it  must  be  an  assignment  of  another  estate  than  the 
term  of  the  lessee:  the  usual  form  is  "all  the  estate,  ri:^htj  title,  and 
"  interest  of  the  said  J.  (the  lessee)  of,  in,  and  to  the  said  demised  pre- 
"  mises,  afterwards,  to  wit,  on,  tSV.  in  the  year  of  our  Lord,  iLc.  at,  Sec, 
"  aforesaid,  by  assignment  came  to  the  said  defendant"  (/). 

So,  in  an  action  of  covenant  by  an  assignee,  the  declaration  need 
not  she^v  the  deed  of  assignment  ;  provided  the  subject  in  disj)ute  may 
he  assigned  Avithout  deed  ;  although  the  covenant  on  v\hich  theactiou 
is  brouglit  ought  to  be  by  deed  (p-). 

(a)  Cmvp.  fl  (e)  PVo^l  r.' 

''di  ,'.  MoO.  n.i.   II  .M.'O   "'■'     1  ^Ji:    t  •'.  I   -  •    :-i   -   .-    ll:'  i   N    t-   ;    •.  .-.Mod   l:i.«    12  Moil  "W 

c.  t^alk   IS9.8. 0.  '•  >;   1  SimO.  a.  H8.«.X  f,'\  Ihid. 


340  Of  the  Action  of  Covenant,        [Chap.  XIII. 

But  all  declarations  against  assignees  state  entry  and  possession ; 
and  this  has  been  the  case  both  before  and  since  Lord  Coke's  dictum  in 
Cooke  and  Harris,  Avhich  was  extrajudicial  {a). 

On  an  assignment  of  land  by  husband  and  wife,  -where  they  are 
seised  to  them  and  the  heirs  of  the  husband,  it  is  sufficient  to  declare 
as  assignee  of  the  husband  {b). 

The  assignee  of  a  lease  which  appears  to  be  good  only  by  estoppel, 
cannot  maintain  an  action  on  the  covenants  (c). 

Tenants  in  common  ought  to  join  in  the  action  of  covenant  for 
rent  (J). 

^V'here  there  is  a  joint-covenant  by  several,  all  should  join  in  the 
actii?n,  or  on  craving  oyer  and  demurring  generally,  it  will  be  bad  (e). 

But  if  any  named  in  the  indenture  have  not  sealed  it,  they  should  be 
excluded  by  an  averment  to  that  eifect.  But  advantage  must  be 
taken  l)y  pleading  in  abatement, if  the  action  be  brought  no-crm^^part 
only  of  the  covenantors  (/J. 

Where  the  plaintiff  cannot  sue  on  a  breach  of  covenant,  without 
some  previous  circumstances  being  by  him  performed,  the  declaration 
should  aver  the  performance  of  them  {g). 

Covenant  for  the  non-payment  of  rent  must  be  brought  where  the 
lands  lie,  though  the  rent  be  made  payable  in  another  place;  as  where 
the  lands  lay  in  Irela7id,  and  the  rent  was  reserved  to  be  paid  in  Lon- 
don, it  was  adjudged,  that  the  action  should  be  brought  in  Ireland  (A). 

The  distinction  respected  the  venue  in  this  action,  is  this :  in  cove- 
nant by  the  grantee  of  the  reversion  against  the  assignee  of  the  lessee 
the  action  is  local,  and  the  venue  must  be  laid  in  the  county  where  the 
estate  lies. — But  in  covenant  by  the  lessor  or  grantee  of  the  reversion 
against  the  lessee,  the  action  is  transitory,  and  the  venue  may  be  laid 
in  any  county  at  the  option  of  the  plaintiffs  (/). 

In  covenant  upon  a  lease  a  view  being  projjer  to  be  had,  the  venue 
was  changed  to  the  county  w^here  the  premises  lay,  though  most  of  the 
plaintiff's  witnesses  resided  in  the  county  where  the  venue  was  laid  (k). 
Where  the  covenant  was  "  to  pay  or  cause  to  be  paid,"  the  breach 
was  sufficiently  assigned  by  stating  that  the  defendant  had  not  paid, 
■without  saying  "  or  caused  to  be  paid,"  for  had  the  defendant  caused 
to  be  paid,  he  had  paid,  for  qui  facit  per  alium  facit  per  se  (J)  :  and  in 
such  case  it  might  be  pleaded  in  discharge  (?«). 

Breach  that  31.  for  a  year  at  Lady-daij  last  was  arrear  and  unpaid,  \s 
well  on  a  general  demurrer  wherein  it  ^vas  objected  that  it  did  not  ap- 
pear where  the  money  became  due  (n), 

(a)  Doui;  458.  (6}  Cro.  Car.  285.  (cjCro  Eliz.  373.  437.  (j;  Bu!].  N.  P.  15«. 

(t)  Ib;d.  Ksp.  N.  P.  304.  Si  2  Sir.  1146.  (/)  Ibid.  (g)  Esp.  K.  P.  304.  Heb.  217. 

(U)  2  i  a-l's  R.  574.   1  biilk.  60.  (i)  Ibid.  (it;  8  E£Lit,;i68.  (/;  J  Str.  220. 

fm)  Ibid.  231.  (u)  yulu.  130. 


-I  ct.  IH.j  nhcTv  the  Ltasr  is  h/  J)citl.  li  1 1 

'J'hf  I'lcns. — 'i'oucliiiii;  the  jdras  lo  this  aclioti,  in  Cfnciinut  lliirc  is 
jirojjt'ily  Fpcakini;,  no  j^tncral  if^suc  ;  lor  tlioi^li  the  (Jcftiulant  may 
plead  nun  est/actum,  as  in  «!cl)t  in  pprcialty,  yet  that  only  puts  the  (!e;«l 
in  issue  and  not  the  breach  of  covenant  ;  and  non  infrnfil  convent ion(w, 
to  a  nei;ative  covenant,  has  been  holiltn  to  be  a  bad  plea.  In  this  ac- 
tion therefore,  the  defendant  must  specially  controvert  the  deed,  or  shew 
that  he  \\7is  pi  rj'ornud  the  covenant  or  is  legally  excused  from  llie  per- 
f  )rniance  of  it;  or,  atlniitting  the  breach,  that  liC  is  discharged  by  mat- 
ter ex  post  facto  as  a  release,  A'v.  (ji). 

The  picas  therefore  to  this  action  for  breach  of  covenant  forj)aynicnt 
of  rent,  are  1.  Performance.  2.  Other  covenants  in  bar.  3.  Non  est 
factum.  4.  Entry  and  eviction.  5.  A  release.  C.  Accord  and  satis- 
faction. 7.  Tender  and  refusal.  8.  I'^icns  en  arrcrcy  or  payieent  ut 
the  day.     1).  Infancy. 

A  defendant  caiuiot  plead  performance  generally  to  negative  and  af- 
firmative covenants  (A). 

Another  covenant  may  be  pleaded  in  bar,  whcu  they  are  both  in  the 
Fame  deed  ;  for  the  meaning  of  the  parties  is  to  be  coUecled  fio.ii  tie 
^vholc  of  the  deed.  Tims,  in  covenant  for  rent,  the  defendant  was 
permitted  to  plead  another  covenant  in  the  same  indenture,  that,  he,  as 
lessee,  might  retain  as  much  of  the  rent  for  repairs  and  charges  (r ). 

lUit  generally,  recli)rocal  covenants  cannot  be  pleided  one  in  Itar  of 
another,  especially  if  they  tlo  not  go  to  the  v.holc  consideration  (^Z)  ; 
ior  the  damages  might  be  unequal  :  and  in  assigning  a  breach  of  cove- 
nant it  is  not  necessary  to  aver  performance  on  the  plaiiitill's  side  un- 
less there  be  a  condition  precedent  (r). 

Therefore,  if  J.  covenant  with  JJ.  to  pay  so  much  money  for  tithes, 
atul  to  be  accountable  for  a!l  arrears  of  rent,  and  B.  covenant  to  allow 
liim  certain  ai!«I)ursements  upon  the  account,  J.  cannot  plead  in  an  ac- 
tion of  covenant,  that  he  was  ready  to  account  if  JJ.  would  allow  him 
the  disbursements ;  f.>r  the  covenants  being  mutual,  each  of  tliem  ii  .s  a 
remedy  aqainst  the  other  for  non-performance  (/). 

So,  unliquidated  damages,  arising  froiii  the  breach  of  other  cove- 
nants to  be  performed  by  the  plaintiii",  cannot  be  pleaded  by  way  ofsot- 

A  set-off  is  allowable,  however,  by  the  statutes  of  set-ofl",  in  an  action 
of  covenant  for  non-payment  of  money,  as  for  rent  ;  but  the  demand 
intended  to  be  sct-ofT,  must  be  such  as  might  have  been  the  subject  of 
an  action  either  of  debt,  covenant,  or  assnmjjsit  {It). 

In  covenant  upon  an  indenture  for  non-payment  of  rent,  the  de- 
fendant pleaded  no.i  est  factum y  and  gave  a  notice  ol'  bCt-ofT;  ."\Ir.  /. 

(a)  Tid.r*  Prir!  \'>'^X  ft)  Cro.  Eliz    OH.  f')  I  '  ev   l\<? 

t(i;2MoJ.  309.  )  H.  r.l.'jrr  (r)  6T.  ?'.5Tl.  CZ-.a-VeU.  73. 

tf  ;•  Cowp.  58.  6  T.  H   JSC  >.'  Tidd'i  1 .»  lliOJ. 

45 


312  Of  the  Action  of  Covenant^        [Clinp.  XIII, 

Denton  at  the  assizes  Mas  of  opinion,  that  he  could  not  do  fo  upon  this 
issue  ;  but  upon  a  motion  for  a  new  trial  the  Court  held,  that  the  evi- 
dence ought  to  have  been  received,  for  the  general  issue  mentioned  in 
the  Act  must  be  understood  to  be  any  general  issue,  and  accordingly 
ordered  a  new  trial  (<■/). 

On  the  pica  oinon  est  factum^  the  issue  is  that  there  is  no  such  deed 
as  that  stated  in  the  declaration.  The  lessor's  title  therefore,  cannot  on 
such  pica  be  controverted  [b). 

The  defendant  may,  under  this  plea,  shew  that  some  of  the  covenants 
in  the  deed  have  been  altered  or  erased,  or  he  may  plead  it  ;  for  if  any 
covenant  be  altered  or  erased,  the  whole  deed  is  discharged  :  for  the 
deed  is  a  complication  of  all  the  covenants,  so  that  by  changing  any,  it 
remains  no  longer  the  same  deed  (r). 

A  deed  may  be  pleaded  as  lost  by  time  and  accident,  without  pro- 
fert  thereof  being  made.  But  {{profert  of  the  deed  be  made,  the  Court 
cannot  dispense  %\ith  oyer  {d).  So  if  it  appear  by  the  record  that  the 
defendant  had  oyer  of  a  copy  only,  it  is  error  :  but  the  Court  will  in 
certain  cases  dispense  with  oyer,  as  where  an  original  lease  is  lost,  and 
an  application  is  made  that  a  copy  of  the  counterpart  may  be  good 
oyer ;  and  if  it  be  once  ordered  that  a  copy  be  deemed  a  compliance 
■with  the  rule  demanding  oyer,  no  error  can  appear  on  the  record,  be- 
cause it  does  not  there  appear  whether  the  oyer  was  given  from  an 
original  deed  or  a  copy.  Much  less  is  it  necessary  to  make  a  profert 
of  a  deed  which  is  pleaded  only  by  way  of  inducement  to  the  action  (^). 

As  to  the  plea  of  nil  habuit  in  tenementis  ;  the  general  rule  is,  that 
a  tenant  cannot  be  permitted  to  controvert  the  title  of  his  landlord  (/)  : 
and  it  is  founded  on  good  sense  ;  for  so  long  as  the  lessee  continues  to 
enjoy  the  land  demised,  it  would  be  unjust  that  he  should  be  permitted 
to  deny  the  title  under  which  he  holds  possession.  But  when  he  is 
evicted,  he  has  a  right  to  shew  that  he  does  not  enjoy  that  which  was 
the  consideration  for  his  covenant  to  pay  the  rent,  notwithstanding  he 
has  bound  himself  by  the  covenant  (if).  If,  therefore,  the  defendant 
hath  been  evicted,  to  be  sure  he  cannot  be  compelled  to  pay  rent,  and 
he  may  plead  that  fact  in  answer  to  the  plaintiff's  demand.  However, 
that  generally  speaking,  an  indenture  operates  by  way  of  estoppel 
against  the  tenant,  and  precludes  him  from  controverting  the  title  of 
his  landlord,  is  proved  by  Lit.  s.  58.  Co.  Lit.  4:7.  b.  and  by  a  variety 
of  other  cases  [h). 

Entry  and  eviction  therefore  is  a  good  plea  to  an  action  of  covenant, 
for  rent  is  suspended  hy  entry  into  any  part.  The  eviction  must  be  tor- 
tious, and  such  as  ousts  the  defendant  of  his  possession  ;  for  a  mere 

{n)  Bull.  N.  P.   180.  (h)  2  Bl    Ilep.  1163.  Esp.  N.  P.  306.  (cj  Ihid.  Co.  ^D. 

frf)  3  T.  R.  161.  (c)  8T.  R    573.  (/)  7T.,R.  5!t.  (;)  3  T.'R-  iiS 

(A;  7  T.  R.  558. 


.Sect  Jll.J  iifuK  tilt  I. (list  tsluj  Deal.  M'S 

trespass  will  iiolsunice.  Entry  and  rvlclion  must  in  covenant  ho  plead- 
ed ;  for  it  cannot,  as  in  dtlit  for  n-iit,  he  ^ivcn  in  evidence  ;  and  to  a 
plea  of  eviction  the  plaintiii"  may  reply  an  entry  l»y  ^^itiic  of  a  power, 
and  traverse  the  eviction  (r/). 

Therefore,  where  in  covenant  for  noM-p:iyni('iit  of  rent  tlie  iil;iirili]l" 
declared  that  he  ua?sei«ed  of  tithes,  and  !iy  indenture  demised  tliem  to 
the  defendant  rendering  rent,  and  that  the  defendant  covenanted  to  pay 
it,  and  assitjned  tl»e  broach  in  non-payment  of  fo  much,  the  defendant 
pleaded  eviction  ;  the  plaintiii"  demurred,  and  Judj^ment  was  given  for 
the  defendant  ;  because  it  is  a  rent,  and  the  eviction  is  a  suspension  of 
it,  and  therefore  a  good  plea  (/y). 

A  release  of  all  covenants  is  a  good  tliscJiarge  of  the  Cf^venanl  before 
it  is  broken;  but  a  release  of  all  actions,  suits,  and  quarrels,  would  not 
he  so  ;  for  at  the  lime  of  the  release  no  debt,  duty,  or  cause  of  action 
existed  (r). 

A\'hercvcr  a  discharge  is  pleaded  in  tlie  nature  of  a  release,  tlic  de- 
fendant must  plead  it  to  be  by  deed,  or  it  will  be  bad  ;  for  as  the  cove- 
nant is  by  decdj  by  deed  only  sliall  it  be  discharged  {d)'. 

It  has  been  said,  that  where  a  co\enant  runs  with  the  land,  and  tlie 
lease  has  been  assigned,  if  the  covenantee  had  released  before  a  breach 
or  action  l)rought,  it  had  l)arred  the  assignee  even  for  a  breach  in  his 
own  time  (r).  [IS'it  this  cannot,  it  is  conceived,  apply  to  a  covenant 
for  payment  of  rent :  for  as  an  assignee  shall  be  bound  by  covenants  that 
run  w ith  the  land,  so  he  shall  take  advantage  of  tliem  ;  ami  were  it 
otheruise,  in  the  case  of  rent  the  covenantee  might  in  fact  defraud  his 
assignee  by  defeating  the  estate  tliat  he  assigned  to  him]  (/). 

Accord  and  satisfaction  is  a  good  plea  where  there  has  been  an  actual 
breach  ;  fornot  till  then  arc  damages  claimable  ;  and  thi::  plea  goes  in 
discharge  of  damages,  not  of  the  covenant  itself,  for  that  remains  (cr). 

Therefore,  where  the  plaintiff  declared  that  in  consideration  that  he 
would  permit  S.  l\  to  enjoy  a  farm  at  (.'.  for  one  year,  tliL-  defendant 
covenanted  to  pay  the  rent  of  721.  per  mm.  and  also  200/.  then  in  ar- 
rcur,  and  the  breach  assigned  w  as  the  non-payment  of  the  rent ;  the  de- 
fendant pleadeil  that  "  before  any  cause  of  action  did  arise  on  the  cove- 
nant, thai  it  had  been  agreed  between  him  and  the  plaintiff,  that  the 
plainliU"  should  take  30/.  in  discharge  of  all  cnvenauts,  which  tho 
j)lainliir  had  accepted ;"  on  denu:rrer  this  plea  w  as  held  to  be  a  bad  oncf 
for  at  the  time  there  w  as  no  covenant  broken  or  damages  sustained  (/<). 

Tender  and  refusal  is  also  a  plea  to  this  action.  The  damages,  not 
the  debt,  being'  for  the  most  part  the  thing  in  demand  by  this  action, 

(a)  1  SstiDd.  n.  204.  n.  -'.  0')2\\)U\.  304.  n.  ;.  :  Id    Tn;  ■!.  77.  (r)  T.%\:  N    T,  COT. 

(..ii  IbiJ.  (e)  Ibid.  30».    Cro.  Ckr,  503-  '  «  Hiill.  N.  P.  !:: 

■s)  Zi^-  J.'.  P.  nw.  7'.  M'iU 


344  Of  the  Action  of  Covenant,  d'c.     [Chap.  XIII. 

tender  and  refusal  need  not  in  general  be  pleaded  with  an  uncore 
prist  {(i). 

But  AS  here  it.  is  brought  for  rent,  it  being  a  debt  ascertainable  and 
certain,  it  is  besi  to  plead  thiirplea  with  an  uncore  prist. 

Ricns  en  arrere,  or  payment  at  the  day,  is  a  good  plea  to  covenant 
for  non-payment  of  rent.  But "  levied  by  distress,"  cannot  be  pleaded  ; 
for  tliat  is  a  confession  that  it  was  not  paid  at  the  day,  to  which  time 
the  breacli  refers  (b). 

Infancy  is  another  plea  in  this  action,  which  may  or  may  not  be  good, 
according  to  circumstances. 

If  the  defendant  has  leave  to  plead  dou])Ie  under  the  stat.  'i  (*^  5 
Ann.  c.  10.  he  shall  not  be  allowed  to  plead  inconsistent  pleas,  as  non 
est  factum,  and  a  condition  precedent  (r). 

Bankruptcy  is  no  plea  to  a  covenant  to  pay  rent  (^),  for  besides  thai 
the  rent  was  not  a  debt  due  at  the  time  of  the  bankruptcy,  and  so  could 
not  be  proved  under  it,  it  is  a  settled  principle,  that  the  tenant's  liability 
on  his  covenant  to  pay  rent,  subsists  during  the  continuance  of  the 
lease,  notwithstanding  he  may  ])ecome  a  bankrupt  and  be  deprived  of 
all  his  property :  but  of  the  assignee  of  the  tenant,  otherwise  (  ). 

In  an  action  of  covenant  for  rent,  or  for  5/.  an  acre  for  ploughing 
meadow,  the  count  being  for  a  liquidated  sum,  money  may  be  paid 
into  Court  (/). 

Where  an  action  of  covenant  was  brought  upon  a  lease  for  non-pay- 
ment of  rent,  and  not  repairing,  <*rr.  the  court  made  a  rule,  that  upon 
payment  of  what  should  appear  to  be  due  for  rent,  the  proceedings  as 
to  that  should  be  stayed,  and  as  to  the  other  breaches,  that  the  plaintiff 
might  proceed  as  he  should  think  fit  (^). 

So  the  Court  have  referred  it  to  the  master  to  compute  what  is  due  in 
covenant  for  non-payment  of  rent  (/i). 

Respecting  the  verdict  and  judgment  in  this  action  ;  in  covenant  for 
non-payment  of  rent  at  divers  days  which  amounts  to  so  much,  if  in 
the  declaration  the  sum  is  m.iscast,  it  is  not  error,  but  the  plaintiff  shall 
have  a  verdict  for  so  much  as  is  really  in  arrear  (/). 

Judgment  cannot  be  given  on  two  covenants  where  one  is  bad  ;  there- 
fore where  a  general  verdict  was  given,  and  entire  damages  were  as- 
sessed, judgment  was  arrested  {k). 

Srf  if  covenant  be  brought  against  two,  and  there  be  judgment  by  de- 
fault against  one,  and  the  other  pleads  performance,  which  is  found  for 
hini,  the  plaintiif  shall  not  have  judgment  against  the  other,  for  on  the 
whole  the  plaiiiliiT  has  no  cause  of  action  (/). 

(o)  Esp.  ^^  p.  3n3.  (fc)  Il.id.  303.  (c)  IbW.  Gilb    R.  123. 

(Uf  .1  Hur.  21 M.  1  il.ni.  433.  (t)  7  T.  R.  SIS.  8T.  R.61,  WEsp.  N.  P.  310. 

{g)  1  Ti^ra  Prict.  .'j65.  (A)  1  Wil,.  75.  3T.  R.  410.  (t)   6  Mod.  213. 

i*;Cio  tlix.  CiJi.  y  (0  1  Lev. . .'). 


Hcct.  I  V.J  yiffion  of  DthI,  S'r.  .T15 

In  covenant  for  rent  ii|)ona  Irasi-  l)y  //.  to  li.  the  point  in  I^huc  was 
vhcthtr  C.  (wlioic  title.  Ix.th  admitted)  dcn>i«cil  first  to  yl.  or  to  an- 
other person  ;  C.  is  a  competent  witness  to  prove  the  point  in  issue,  for 
the  verdict  cannot  he  given  in  evidence  in  any  action  which  may  after- 
wards  he  hrounht  eitlier  hy  or  against  liini  {a). 

A  hill  in  efiiiity  may  I»e  hruu^ht  for  rent,  where  the  remedy  at  law- 
is  lost  or  become  very  dilhcult,  and  such  the  Court  will  relieve  on  the 
foundation  of  length  of  time  {b). 


Section  I\'.     Aciion  of  JJrof,  for  Lsc  (unl  Occupntion. 

An  action  of  dc])t  will  also  lie,  or  of  as?iimpsil  for  ii«^c  ami  occupa- 
tion, where  rent  is  in  arrc:»r  I)y  a  tenant  who  holds  under  a  lease  not 
by  deed  :  as  utider  a  writinu;  without  deed  or  a  parol  demise. 

Of  Debt. — First  with  rcsj)ect  to  the  action  of  debt. 

This  action,  we  have  before  observed,  is  founded  upon  a  contract, 
either  express  or  implied,  in  which  the  certainty  of  the  sum  or  duty 
appears,  ami  the  plaintill  is  to  recover  the  sum  in  numcro  and  not  in 
damayes  (r). 

Where  there  was  a  tenant  at  will,  witli  a  rent  reserved,  tlic  lessor 
niip;ht  always  have  an  action  of  (hbt  for  arrears  of  rent  {d). 

Kut  in  declaring  on  a  lease  at  v.  ill  for  rent  arrear,  the  plaintiflT  must 
shew^  an  occupation  ;  for  the  rent  being  only  due  in  respect  thereof, 
it  should  appear  to  the  Court  w  hen  the  lessee  entered  and  how  he  oc- 
cupied (r). 

Against  tenants  at  sufTorancc,  it  seems  that  an  action  of  debt  lay  not, 
for  rent  arrear,  for  the  contract  was  determined,  and  they  are  in  Iiy 
wrong    but  in  such  cases  there  is  now  a  special  provision. 

U'/nrc  a  tcnnnl  holds  over,  for  double  value. — For  by  stat.  4  G.  2.  c.  28. 
^.  1.  it  is  enacted,  That  if  any  tenant  or  tenants  for  life,  or  lives,  or 
Years, or  persons  coming  in  under  or  by  collusion  with  them,  hold  over 
any  lands,  tenements,  tV^r.  after  the  determination  of  their  estates,  af- 
ter demand  made  and  notice  in  writing ;^iven  for  delivering  the  possci- 
<ion  thereof  by  the  landlord,  or  the  person  having  the  reversion  or  r- - 
mainder  therein,  or  his  agent  tliereunto  lawfully  authorised,  such  tenant 
or  tenants  so  liolding  over,  shall  pay  to  the  i)erson  so  kept  out  of  po  - 
session  at  the  rate  of  double  the  yearly  value  of  the  lands,  tdicment', 
Slc.  so  detained,  for  so  long  a  time  as  the  same  arc  dctaiu'-d  ;  to  be  re- 
covered by  action  of  debt,  w  hereunto  tlie  defendant  or  defendants  shall 
be  obliged  to  give  special  bail. 

'.o)3T.  n. 3'>i».  h)  1  Aivor  'e)Tin.  X  p.  I*;:.  (.*)  r.sp.  x.  p  '.ss. 

(fl  1  S»lk.  LW.  Doug.  457 


346  Adiou  of  Debt,  [Chap.  XII I. 

Debt  for  double  value  on  the  above  statute  does  not  lie  against  a 
weekly  tenant  (a). 

For  double  rent. — Also,  by  stat.  11  G.  2.  c.  39.  s.  18.  it  is  enacted, 
That  in  case  any  tenant  or  tenants  shall  give  notice  of  his,  her,  or  their 
intention  to  quit  the  premises,  and  shall  not  according'y  deliver  up  the 
possefsion  thereof,  at  the  time  in  such  notice  contained,  the  said  tenant 
or  tenants,  his,  her,  or  their  executors  or  administrators,  shall  from 
thenceforth  pay  to  the  landlord  double  the  rent  or  sum  m  hich  he,  she, 
or  they  should  othprA\  ise  have  paid. 

Upon  these  statutes  it  has  been  held,  tbat 

AVith  respect  to  tbe  i  G.  2.  it  is  a  remedial  law  ;  the  penalty  being 
given  to  the  party  aggrieved  (/>). 

The  action  under  this  statute  stands  in  place  of  an  ejectment  (f ) ;  but 
is  more  beneficial  and  effectual  (J). 

The  notice  to  quit  may  be  before  the  expiration  of  the  lease  or  time 
of  demise  or  after  {/). 

The  notice  in  writing  is  of  itself  a  sufficient  demand,  within  the 
words  of  the  statute  "  after  demand  made  and  notice  in  writing 
given  (/')." 

In  debt  for  double  value  under  the  stat.  4  G.  2.  the  plaintiff  after 
stating  a  demise  to  the  defendant's  wife  and  her  subsequent  intermar- 
riage with  the  defendant,  al!edp:pd  in  the  first  count  a  notice  to  quit  and 
demand  of  possession  delivered  to  the  defendant  and  his  wife,  and  in  the 
second  count  alledged  a  notice  to  quit  and  demand  of  possession  deli- 
vered to  the  wife,  previous  to  her  intermarriage  m  ith  the  defendant ; 
held  that  to  support  the  second  count  the  husband  need  not  be  joined 
in  conformity  ;  and  that  to  sustain  the  action,  it  was  not  necessary  to 
aver  to  have  given  notice  to  the  husband  subsequent  to  the  intermar- 
riage (^). 

A  receiver  appointed  under  an  order  of  the  Court  of  Chancery  is 
"  an  agent  lawfully  authorized"  within  the  words  of  the  statute  (/j). 

One  tenant  in  common  may  maintain  this  action  for  double  value  of 
his  moiety ;  for  where  the  injury  is  separate,  tenants  in  common  may 
have  several  actions  (/). 

The  administrator  of  an  executor  cannot  sue  for  double  the  value  of 
lands  held  over  after  notice  to  quit  under  a  demise  from  the  testator,  ac- 
cording to  4  G.  2.  c.  2S.  without  taking  out  administration  de  bonis  non, 
even  though  the  tenant  has  attorned  to  her:  for  most  certainly,  in  any 
case  in  which  the  plaintiff  means  to  make  title,  she  must  take  out  admi- 
nistration de  bonis  non  {k). 

With  respect  to  the  stat.  11  G^.  2.  a  parol  demise  from  year  to  year  is 
a  sufficient  holding  within  the  statute  so  as  to  subject  the  tenant  to  the 

(a)  aCampb.  453.  (6;  5  Bur.  2638.  (c)  3  East,  3581.  (d)  2  Bl-  R.  1C77 

ft)  Bl.  R    1076.  (/)  5  Bur.  2691.  {.g)  1  Bog.  it  PuU.  N-  R.  174. 

{h)  Ibidr  CO  2  Bl.  R.  1077.  Ik)  1  Bos.  U  PuU.  310 


Sect.  IV.]  for  Vst  and  Occupation.  Ml 

penalty  of  douMc  rent,  if  Im   h  '^<!  "\'r  ■•^^<t  Jm-  has  given  notice  t« 
quit  («). 

The  notice  by  the  tenant  to  quit,  need  not  be  in  writing :  a  parol  no- 
tice to  quit  is  suflicif  nl  {If). 

The  acceptance  of  (single)  rent  accrued  since  the  notice,  is,  it  seenu, 
a  waiver  of  the  landlord's  ri^'ht  to' double  rent,  but  does  not  necessari- 
ly imjtly  that  the  tenancy  should  continue  (r). 

Hy  5la.t.  II  (r.2.c.  10.  s.  12.  it  is  enacted,  That  every  jenant  to 
whoQi  any  declaration  in  ejectment  shall  be  delivered  for  any  lands, 
Ar.  shall  forthwith  give  notice  to  his  or  her  landlord,  or  his  baililTor 
receiver,  under  the  [>cnalty  of  forfeiting  the  value  of  three  year?  improv- 
ed or  rack-rent  of  the  premise*  to  the  person  of  ^vhom  he  or  she 
holds ;  to  be  recovered  by  action  of  del>L 

Debt  will  lie  for  use  and  occupation  gencmUy,  without  setting  forth 
the  particulars  of  the  demise,  or  where  the  premises  lie  {d). 

Therefore,  in  a  case,  where  to  a  count  for  use  and  occupation  gene- 
rally, the  defendant  demurred  and  assigned  foF  causes  that  it  did  not 
set  forth  any  demise  of  the  premises,  nor  for  what  term  they  were  de- 
mised nor  what  rent  was  payable,  nor  for  what  length  of  lime  the  de- 
fendant held  and  occupied  the  premises,  nor  when  the  sum  of  o/. 
thereby  supposed  to  be  due  became  due,  nor  for  w  hat  space  of  lime ; 
after  argument,  the  Court  of  Conuiion  Pleas  gave  judzmcnt  for  the 
plaintiff  on  that  count  [e). 

But  if  the  particulars  of  a  demise  l)e  alledged,  they  must  be  proved. 
Therefore  in  an  action  for  double  rent  on  the  stat.  11  G.  2.  c.  19. 
7.  18-  where  the  declaration  stated  a*<ease  for  thi^ee  years,  but  on  the 
evidence  it  appeared,  that  the  lease  fur  three  years  was  void  under  the 
statute  of  Frauds,  and  that  the  defendant  was  only  tenant  from  year 
to  year :  though  this  was  sufficient  for  the  action,  yet  a  lease  for  three 
years  having  been  laid, and  not  proved,^he  plaintin"  was  nonsuited  {J). 
After  a  landlord  has  recovered  in  ejectment  against  his  tenant,  he 
may  maintain  debt  upon  the  slat.  4  G.  2.  for  double  yearly  value  of 
the  premises  during  the  term  the  tenant  hcfd  over  after  the  expiration 
of  the  landlord's  notice  to  quit  (§■). 

A  landlord  declared  in  debt,. first,  for  the  double  value,  secondly, 
for  use  ai;d  occupation  ;  the  tenant  pleaded  nil  dthct  to  the  first,  and  a 
tender  of  the  single  rent  before  action  brought  to  the  second  count,  an^l 
paid  the  money  into  Court,  which  the  plaintiff  took  out  l)erore  trial, 
and  still  prxecdcd  :  held  that  this  was  no  cause  of  noiisuil  as  upon  the 
ground  of  such  acceptance  of  the  single  rent, being  a  waiver  of  the 
plaintiff's  right  to  proceed  for  the  double  value;  but  that  the  caseon^ht 
to  have  gone  to  the  jury,  and  that  Ih?  plaintiii's  going  on  wit';  ib--  t- 

*.  iT.K  iz.  iZiA.Z:-   .  .•")  Do-.-?  «;  (g" 


348     Of  Assumpsil  for  Use  and  Occupation.    [Chap.  XIII. 

1  ion  after  taking  tlie  single  rent  out  of  Court,  was  evidence  to  shew  that 
lie  (lid  not  mean  to  Avaive  his  claim  for  the  \vhole  value,  but  to  take  it 
pro  tanlo  :  it  seems  that  thoui^h  the  single  rent  a\  ere  paid  into  Court  on 
the  second  count,  yet  tliat  if  the  plainti/i"  had  not  accepted  it,  but  had 
recovered  on  the  Orst  count,  the  defendant  would  not  have  heen  en- 
titled to  have  the  money  so  paid  in,  deducted  out  of  the  larger  sum  re- 
covered (rt). 

Debt  against  an  executor  shall  be  in  ih^' act  Inct  only;  for  he  ii 
chargeable  no  farther  than  he  has  assets  (b). 

An  administrator  may  be  declared,  against  as  assignee  in  debt  for  rent, 
for  the  time  that  he  enjoyed  the  land  and  was  in  possession ;  and  must 
be  in  the  debet  and  dctinct  (r). 

An  executor  must  bring  debt  in  iht  detinet  only,  though  this  would 
be  aided  after  verdict  by  the  statute  of  Jeofails  {d). 

The  Picas. — In  debt  for  rent  on  a  demise  in  writing  without  deed 
or  by  parol,  the  proper  plea  is  no7i  demisit  (c). 

Entry  and  eviction  is  a  good  plea  to  this  action  ;  so  as  it  be  such  a 
tortious  entry  and  expulsion  as  to  prevent  an  enjoyment  of  the  premises. 
For  if  there  was  no  beneficial  occupation,  there  can  be  no  ground  for 
the  action. 

The  statute  of  Limitations,  21  J.  1.  c.  16.  which  enacts,  That  all- 
actions  for  rent  arrear,  or  grounded  on  any  lending  or  contract  with- 
out specialty,  must  be  brought  within  six  years,  is  another  good  plea  : 
and  such  plea  must  conclude  with  a  verification,  as  when  pleaded  to 
an  action  of  assumpsit  (/)• 

As  to  the  plea  of  infancy,  see  ante  C.  IV. 

So  a  plea  of  set-ofF  is  allowed  :  and  also  a  tender  and  refusal.  So  a 
release. 

A\'here  to  del)t  for  rent  on  a  demise  of  three  rooms,  the  plea  was, 
that  the  plaintiH"  demised  the  said  three  rooms  and  an  other  room,  and 
that  he  entered  into  the  other  room,  but  did  not  traverse  the  demise  of 
the  three  rooms  only,  it  was  held  to  be  bad  for  want  of  such  a  tra- 
verse (§•). 

It  is  now  settled  that  in  action  of  debt  on  a  simple  contract,  as  this 
is,  the  i)laintifr  may  prove  and  recover  a  less  sum  than  he  demanded  by 
his  writ  (Jt). 


Section  V.     Of  Assumpsit  for  Use  and  Occupation. 

Another  remedy  for  the  recovery  of  rent,  where  the  demise  is  not  by 
deed,  lies  by  action  oi  asswupsit  for  use  and  occupation. 

C")  10  F:ast.  48.  (b)  Bull   N.  P.  ir,9.  (c;  Esp.  N.  P. 217.  Hull.  N.  P.  U9. 

(d)  Ibi.1.  (e)  Bull.  N.  P.  1.70.  Hard.  332.  {/)  1  SauuU.  233.  n.  2- 

(SJ  1  SauuU.  COa.  (.'.)  ]  U.  BI.  R.2l'J. 


^ect.  v.]     Of  Assumpsit  for  Use  and  Occupallon.  iiq 

In  an  action  lor  iise^and  occupation,  the  property  tax  will  not  be  de- 
iliicted  at  nisi  prills  Ironi  tlie  rent  tlu(!(r/). 

At  common  law  it  was  liolden,  that  assumpsit  wouM  lie  for  rent  on 
an  express  promise,  Imt  not  on  an  implied  i)romiso,  and  that  such  ex- 
press promise  must  liave  been  made  at  the  same  time  v\  ilh  the  lease  (/ ). 
liut  now, 

The  stat.  II  U.  2.  c.  \\).  s.  1  !■.  in  order  to  o!)viatc  some  (lifTicu'ties 
that  many  limes  occur  in  the  recovery  of  rent,  nhcrc  the  demises  arc 
not  by  deed,  enacts,  Tiiat  it  shall  be  lawful  for  the  landlord,  wliere  the 
a;j;reement  is  not  by  deed,  to  recover  a  reasonable  satisfaction  for  the 
lands,  tenements,  or  hereditaments,  hckl  or  occupied  by  the  defendant, 
in  an  action  on  the  case,  for  the  use  and  occuj)ation  of  what  was  so  held 
or  enjoyed  ;  and  if  in  cvidrnrc  on  the  trial  of  such  action  any  pare'  de- 
mise or  any  agreement  (not  beini;  by  deed,)  wliereon  a  certain  rent  was 
reserved,  shall  appear,  the  plaintiff  in  such  action  shall  riot  therefore  be 
iion<iiited,  but  may  make  u?e  thereof  as  an  evidence  of  the  (juanLum  of 
the  damages  to  be  recovered. 

The  action  for  use  and  occupation  is  founded  on  a  contract ;  and  un- 
less there  were  a  contract  express  or  implied,  -.he  action  cannot  be  main- 
tained (r). 

If  there  be  an  agreement  by  deed  to  demise,  but  the  words  do  not 
amount  to  an  actual  ilemise,  an  action  for  u.se  and  occupation  is  main- 
tainable {(I). 

But  a  written  agreement,  Ihoughcomingout  of  the  possession  of  the 
opposite  party,  cannot  be  given  in  evidence  in  any  action  unless  it  be 
legally  stami)ed. 

Therefore  w  iicrc  counsel  were  about  to  ask  a  party  as  to  his  occupa- 
tion and  payment  of  rent  to  the  defendant  in  an  ejectment,  he  was 
stopped  by  Lord  Kcwjoii^  who  observed,  that  the  occupation  had  been 
under  an  agreement  in  writing,  and  the  rent  had  been  paid  in  pursuance 
of  it ;  if,  said  his  Lordship,  the  a^^reenient  cannot  be  given  in  evidmce, 
yon  cannot  impiirp  as  to  the  occupation  ;  the  parly  might  have  bin  in 
possession  by  licence  and  permission  of  the  defendant,  and  not  as  te- 
nant (r). 

A.  agreed  in  writing  to  pay  the  rent  of  certain  tolls,  uhich  lie  had 
hired,  "to  the  treasurer  of  the  conunijsioiiers:"  held  ti.at  no  jxtion 
for  the  rent  could  be  maintained  in  the  name  of  the  treasurer  ;  for  t!ie 
contract  is  to  pay  the  commit^iioners  through  the  medium  of  their  of- 
ficer (7). 

AVIicrc  there  is  a  note  in  writing  expressing  the  (jtnmtum  of  rent  or 
the  duration  of  the  term,  evidence  of  a  parol  agreement  to  annul  or  sub- 

ra)  aCairpb    IflU  (6).2  I  fv.  100.  B-ill.  X.  P.  138.  (el  I  T.  U.  337. 

(rf)  4  Ejp.  K.  5?.  ft;  2  Ei?.  n.  TS-t.  (f)'i  Boi  N.  Tul.  R   U7. 

46 


3.30        Of  Assvmpsil  for  Use  and  Occvpallon.     [Chap.  XIIL 

stantially  to  vary  the  written  contract,  is  inadmissible  ;  else  the  statute 
of  Frauds  would  be  eluded,  and  the  same  uncertainty  introduced  by 
snppletory  or  explanatory  evidence, -.which  that  statute  has  suppressed 
1 1  lespect  to  the  principal  object  (a). 

Thus,  where  there  was  a  written  agreement  that  a  lease  should  be  let 
of  a  house  at  20)1. per  ami.  .on  which  an  action  was  brought  for  use  and 
occupation  ;  the  defendant  paid  2G/.  into  Court.  At  the  trial,  the 
plfiintlli  oii'ered  to  give  parol  evidence,  that  beside  the  26/.  per  ami.  the 
defendant  was  to  pay  the  ground  landlord  21.  12s.  Gd.  but  this  evitlcnce 
was  rejected  ;  particularly  as  no  evidence  was  oifered  of  the  actual  pay- 
ment of  such  rent  {b). 

Parol  evidence,  indeed,  of  a  verbal  agreement  cannot  be  received 
where  it  appears  that  it  was  reduced  to  writing  :  and  this  even  where 
the  written  agreement,  for  want  of  being  stamped, 'or  for  other  infor- 
mality or  defect,  was  inadmissible  (r) :  for  parol  evidence  cannot  be 
admitted  to  vary  the  substance  of  a  written  agreement  (r/).  With  re- 
spect to  collateral  matters,  however,  it  is  otherwise  ;  for  a  person  may 
shew  by  parol  proof  \^\o  is  to  put  a  house  in  repair,  or  the  like,  con- 
cerning ^\•hich  nothing  is  said  in  the  written  .agreement.  So,  it  may  be 
admitted  to  explain  a  deed  or  other  instrument ;  or  to  prove  other  con- 
siderations than  those  expressed  in  a  deed  (e). 

This  action  being  founded  on  a  contract  either  expressed  or  implied, 
it  is  a  general  rule,  that  wherever  the  defendant  uses  or  enjoys  the  pre- 
mises by  permission  of  the  plainliif  [as  his  tenant,}  he  shall  be  liable  in 
this  action  (/). 

So,  this  action  may  be  maintained  by  a  grantee  of  an  annuity,  after 
a  recovery  in  ejectment  against  a  tenant  who  was  in  possesbion  under  a 
demise  from  year  to  year,  for  all  rent  in  his  hands  at  the  tijne  of  the 
notice  by  the  grantee,  and  down  to  the  day  of  the  demise  :  but  not  af- 
terwards (g). 

So  after  a  recovery  of  possession  of  the  premises,  the  plaintiJT  is  en- 
titled to  the  profits  for  use  and  occupation,  to  the  time  of  tiie  demise, 
but  not  after,  if  he  thinks  fit  to  sue  for  them  (//). 

But  an  action  for  use  and  occupation  and  an  ejectment,  when  applied 
at  the  same  time,  are  totally  inconsistent:  for  in  one,  the  pliintiii  says 
that  the  defendant  is  his  tenant,  and  therefore  he  must  pay  him  rent; 
in  the  other  he  says,  that  he  is  no  longer  his  tenant,  and  therefore  must 
deliver  up  the  possession.     He  cannot  do  both  (i). 

This  action  therefore  being  founded  von  a  contract  express  or  implied, 
will  not  lie  where  the  possession  of  the  tenant  is  adverse  and  tortious ; 

(n)  2  BI.  n.  1250.  3  WiU  27i;.  (&)  2  Rl.  T..  1240. 

(c)  3  T.  K.  528.  C  T.  R.  4(,  l  (rf)  2  Bl.  11.  12.'j0. 

(«)  2  Str.  791.  in  Hotis.  8  T.  K.  379.  (/)  3  T.  II.  327.  (4-;  1  T-  R.37?. 

lAj  Cowp.  2de.   IT.  K.  387.  '^i'' Ibid.      , 


{?ect.  v.]     Of  Assumpsit  for   iW  and  Occupation.  AM 

unless  indeed  tlie  iiliiinti/i' ceases  fo  consider  it  as  such,  hy  v.iivinq  the 
tort,  and  recurring  (o  his  remedy  hy  this  action  on  the  contract  (<;). 

The  drfcn  luit  in  thi^  action,  as  in  all  actions  for  rent,  is  not  admit- 
ted to  call  in  (luesti'jn  the  plainlill's  title  lo  the  premises;  or  in  any 
uay  to  impeach  it. 

Therefore,  in  an  action  fur  ii^c  and  occii|iation  hy  an  inciinihent 
aqainst  a  tenant  of  tlie  glel)C  hind?,  the  defendant  cannot  <;ive  evidcMce 
of  a  simoniacal  presentation  of  liic  plaintiir,  in  order  to  avoid  l;ii> 
title  [0). 

So,  in  an  action  for  use  and  occupation,  tlie  plainti/l'  having  given  evi- 
dence of  payment  of  rent  hy  the  defendant  for  nineteen  years,  tlie  de- 
fendant would  have  gone  into  evidence  to  prove  a  title  in  an(»ther.  J\r 
iniinot  /.—Payment  of  rent  and  lioMin:i^  under  a  person  (or  si»  Ion;'  a 
lime,  is  conclusive  evidence  against  the  defendant,  and  he  cannot  set  up 
a  title  in  another  :  and  as  to  the  ol)jection  that  has  been  made,  that  the 
defendant  may  be  lial)le  to  two  actions  for  the  rent,  by  pr^rsons  liaving 
diiierent  titles,  that  cannot  be  the  case  ;  for  though  another  has  title, 
yet  lie  <^nnot  bring  an  action  for  the  rent  till  he  has  made  an  entry,  and 
recovered  in  ejectment ;  [which  entry  need  not  now  be  actually  made 
in  such  case,  but  is  supposed,  3  Bur.  I')!).}.  Jtun.  Eject.  1<J9.J  and  then 
it  must  be  trespass  for  the  mesne  profits  (r). 

But  it  was  agreed,  that  though  a  defendant  cannot  controvert  the 
title  of  the  plaintiiT,  j'ct  he  may  give  evidence  to  explain  the  holding 
under  him,  as  that  he  was  executor  during  the  minority  of  y/.  />'.  and 
that  his  interest  was  then  determined  ;  for  that  admits  the  plaintilT's 
title,  during  the  time  the  defendant  held  under  him  (^/). 

An  action  for  uscantl  occupation  is  maintainable  svithout  attainment 
upon  the  stat.  d)  <?•  5  Ann.  c.  IG.  s.  9.  <fr  10.  I)y  the  trustees  of  one, 
whose  title  the  tenant  had  notice  of  before  lie  paid  over  his  rent  to  his 
original  landlord ;  though  the  tenant  had  no  notice  of  the  legal  estate 
being  in  the  plainliiTson  the  record  (<). 

In  an  action  for  use  and  occupation,  where  the  defendatit  has  come 
in  under  the  plaintiiT,  he  cannot  shew  that  the  plainliir's  title  has  ex- 
pired, unless  he  solemnly  renounced  the  i)laintiil"*s  title  at  the  time,  and 
■  immenced  a  fresh  liolding  under  another  person  (  /'). 

In  an  action  for  use  and  occupation,  where  the  dcfcntlaut   did  not 
vome  in  under  the  plaintiiT,  the  plaintiH"  can  only  recover  rent  from  the 
time  lie  has  had  the  legal  estate  in  him,  although  he  may  have  had  the 
piitable  estate  long  before  (r>). 

The  rule  that  a  tenant  cannot  com])cl  his  landlord  to  interplead,  docs 
not  prevail,  \vhtre  the  claim  ofa  third  inrhon  arises  by  the  act  of  the 


..1,  Cowp  24C.  T.  n   an?. 

(67  .S  T.  R.  r> 

(e>  F?p. 

'd)  Ibid.tfc 

W  1 

•■  «.tst 

\,  'J) 

/■>   ;  r   , 

\'r.   ''    '. '. 

I'f :  i  C*!ripb   13  oo.:e 

352     Of  Assumpsit  for  Use  and  Occvpatlon.  [Cliap.  XIII. 

landlord  subsequent  to  the  commencement  of  the  relation  of  landlord 
and  tenant  (a). 

By  the  abovementioned  statute  (11  G.  2.  c.  19.  s.  15.)  it  is  enacted. 
That  where  any  tenant  for  life  shall  happen  to  die  before  or  on  the 
day  on  which  any  rent  was  reserved  or  made  payalile  upon  any  demise 
or  lease  of  any  lands,  i^c.  which  determined  en  the  death  of  such  te- 
nant for  life,  that  the  executors  or  administrators  of  such  tenant  for 
life  shall  and  may,  in  an  action  on  the  case,  recover  of  and  from  such 
under-tenant,  if  such  tenant  for  life  die  on  the  day  on  which  the  same 
was  payable,  the  whole,  or  if  before  such  day  then  a  proportion  of 
such  rent,  according  to  the  time  such  tenant  for  life  lived,  of  the  last 
year,  or  quarter  of  a  year,  or  other  time  in  which  the  said  rent  ^vas 
growing  due. 

[Respecting-  the  above  statute,  see  ante  C.  VIII.  S.  I.  tit.  Rent,  ap- 
portionment of.] 

An  executor  brought  an  action  for  rent  due  to  his  testator  in  his 
life-time,  and  for  other  rent  due  in  his  own  time,  and  there  was 
another  count  on  a  quantum  meruit  for  the  rent  of  another  messuage, 
in  which  he  had  not  declared  as  executor.  After  judgment  b}'-  default, 
and  a  writ  of  inquiry  executed,  upon  error  brought,  judgment  was 
reversed,  because  the  demands  were  incompatible : — but  perhaps  it 
would  have  been  helped  by  a  verdict,  because  for  rent  due  in  his  own 
time,  he  need  not  declare  as  executor  ;  and  therefore,  if  it  had  been 
tried,  the  Judge  ought  not  to  have  permitted  him  to  prove  rent  due  to 
himself  in  his  own  right  {b). 

The  rule  as  to  joinder  in  actions  is,  that  only  those  causes  of  action 
can  be  joined,  that  admit  of  the  same,  plea,  and  the  same  judg- 
ment (f). 

An  action  for  use  and  occupation  will  not  lie,  where  the  pre- 
mises are  let  for  a  purpose  illegal,  or  contra  boiios  mores  ;  as  to  a 
prostitute  (^0- 

An  action  for  rent  will  not  lie  ^^here  the  title  is  in  dispute :  tlie 
Court  therefore  will  not  try  a  title  by  the  action  for  use  and  occupa- 
tion ;  an  ejectment  is  the  proper  remedy.  This  was  decided  in  a  case 
before  the  Court  of  King's  Bench,  by  Lord  Kemjon  C.  J.  wherein  the 
action  was  brought  against  the  tenant  for  rent,  ^\hile  the  heir  at  law 
and  a  devisee  were  contesting  their  right  to  the  premises  (e). 

The  Pleas. — In  assumpsit  under,  the  statute  for  use  and  occupation  of 
a  house  by  permission  of  the  plaintiff,  nil  habuit  in  tenemcntis  is  a  bad 
plea ;  for  the  action  is  founded  on  the  promise,  and  therefore  if  the 
plaintili' had  an  equitable  title  or  no  title  at  all,  yet  if  the  defendant 
enjoyed  by  his  permission,  it  is  sufficient ;  for  it  is  no  more  necessary 

(a)  12Veg.333.  (6)  2  Str.  1271.  ct  u.  1. 

(c)  12  Mod.  180.  1  Ld.  Rayra.272.  Willes.  120.  (d)  1  Esp.  R.  13. 

(t)  MSS.  Hil.  T.  37  G.  111. 


Sect.  V.J     Of  Assumpsit  for  l^sc  and  Occupation.  3.')3 

for  Iho  plainlill'to  f.iv  that  it  was  liis  house,  than  in  aasumpsit  for  goodt> 
it  is  necessary  to  say  that  they  u  ere  his  goods.  (<i). 

But  the  plea  would  be  good  at  connnon  law,  for  there  an  interest  is 
supposed  to  have  passed  from  the  lessor  (A). 

Yet  «/»/.  /  whether  at  tiiis  day  such  i>lea  would  he  admitted,  even  in 
an  action  for  rent  at  common  law  ;  for  if  it  would,  the  supposition  of 
an  int<  rest  having  passed  would  l)e  a  fiction,  not  in  furtherance  of  the 
ends  of  justice,  but  in  destruction  of  them  ;  and  tiic  ride  laid  down  b> 
Lord  Krni/on,  that  "  in  an  action  for  use  and  occupation  it  ought  not, 
*'  to  be  permitted  to  a  tenant,  who  occupies  by  the  licence  of  another, 
*•  to  call  upon  that  other  to  sliew  the  title  under  which  he  let  tho 
*♦  land  or  premises,"  is  not  a  mere  technical  rule,  but  is  founded  on 
public  convenience  and  policy  ;  and  as  it  was  adopted  by  the  Court,  in 
conformity  to  the  recognition  of  it  in  cases  prior  to  the  one  then 
before  them,  as  well  as  on  tlic  grounds  of  reason  and  cfjuity,  it  may 
now  be  considered  as  a  general  rule,  a])plicablc  to  all  cases  of  a  similar 
kind. 

Tiie  defendant  may  in  this  action,  upon  the  plea  of  non  assumpsit, 
which  is  tlie  general  issue,  give  in  evidence  any  thitig  w  hich  proves 
nothing  due,  as^|ie  delivery  of  corn  or  any  other  tiling  in  satisfaction  ; 
or  a  release  ;  some  may  give  in  evidence,  performance  (r).  In  short, 
the  question  in  Assumpsit  upon  the  general  issue  is,  whetjicr  there  was 
a  subsisting  de1)t  (f/),or  cause  of  action,  at  the  time  of  commencing 
the  suit  :  therefore  though  a  distinction  has  been  taken  that  payment 
or  any  other  lejal  discharge  nuist  be  pleaded  ;  yet  that  distinction  is 
not  law  ;  but  in  both  cases,  the  defendant  is  allowed  to  giv(^  in  evi- 
dence any  thing  that  will  discharge  the  debt  (c). 

But  matters  of  law,  in  avoidance  of  the  contract,  or  in  discharge  of 
the  action,  arc  usually  pleaded  ;  and  it  is  necessary  to  plead  a  tender, 
set-off,  or  the  statute  of  ]  limitations  (/). 

Assumpsit  lies  against  a  lessee  from  year  to  year  upon  his  agreenieiit 
to  pay  rent  during  his  tenancy,  notwithstanding  his  bankriiptry,  and 
the  occupation  of  his  assignees  during  part  of  the  time  for  uhich  the 
rent  accrued,  which  were  pleaded  in  bar.  Sluare .'  whether  a  special 
■plea  in  bar,  stating  no  facts  but  what  might  have  been  proved  under 
the  general  issue,  but  leaving  otiier  facts  unanswered,  which  the  gene- 
ral plea  would  have  put  in  issue,  be  good  (^O- 


(a)  I  Wils.  311    Bull    X    P    139.  Enp.  N'.  P.  IBS.  ('<)  Ibi.l.  (c)n\i}\.  X.  V.  lil. 

{<l)\  TiiJd'n  Pracl   yj3.  (t)  Bull.  N,  P.  ISl'  ,/)  1  TiJJ's  Pract.  >J3 

[g]  8  KmI,  311. 


[  354  j 


CHAPTER  XIV. 


Of  the  Remedies  for  and  against    Landlord  and    Tenant , 

wherein 

Of  the  Actions  of  Ejectment  and  Trespass  for  Mesne  Profits 

for  Recovery  of  Rent  and  Possession. 


Section  T.     Of  the  Action  of  Ejectment  at  Common  Law, 

Section  II.     Of  the  Action  for  Mesne  Profits. 

Section  III.     Of  a  second  Action  of  Ejectment. 

Section  IV.     Of  the  Action  of  Ejectment  upon  the  Statute 

4  G.  2.  c.  28. 
Section  V.     Of  the  Landlord's  Remedy  under  the    Statute 

llG,  2.  c.  19.  where  the  premises  are 

vacant. 


Section  I.     When  an  Ejectment  lieSj  and  the   Proceedings 
therein  at  Common  Law. 

OF  the  various  remedies  which  the  law  affords  for  the  breach  of  a 
contract  or  the  reparation  of  a  wrong,  none  perhaps  so  intimately 
concerns  the  respective  relations  of  landlord  and  tenant,  as  that  ad- 
mirable fiction  of  the  courts  of  common  law,  called  the  action  of 
ejectment. 

Besides  the  remedy  given  to  a  landlord,  where  the  lease  contains 
a  clause  of  re-entry  on  non-payment  of  rent,  by  the  stat.  4  G.  2.  c.  28. 
6-.  2.  (of  which  hereafter)  the  action  of  ejectment  lies  at  common  law 
to  recover  possession,  on 

The  expiration  of  the  lease  by  effluxion  of  iime  ;  or 

The  determination  of  the  lease  by 

Non-payment  of  rent,  or 
Non-performance  of  cove^iants 

Where  the  possession  is  vacant,  or 

Where  the  tenant  is  in  possession.  V   \ 


Sect.  I.]  Wien  Ejectment  lies,  S^'c.  l.OS 

In  order  ho^'ever,  to  explain  tlic  action  as  applicable  to  these  par- 
ticular cases,  wc  must  go  into  a  general  account  of  the  nature  of  llw, 
remedy  by  ejectment. 

Hi  story  of  the  Action. — By  the  ancient  common  law,  the  only  mcf  hoil 
of  recovering  the  possession  of  land  was  by  real  action  by  urit  of 
entry  or  assize,  and  this  in  no  case  where  the  et>tatc  was  less  than 
freehold  ;  for  a  mere  leasehold  interest  or  term  for  years  was  in  the 
early  period  of  our  constitution,  when  feudal  princij)les  more  strictly 
prevailed,  deemed  of  siicli  little  import,  that  no  remedy  was  provided, 
whereby  the  tenant  could  rej^aiii  his  possession  in  case  he  was 
ousted  by  Ids  hndlord  or  by  a  stranger :  against  the  forme  he  could 
proceed  only  upon  his  breach  of  covenant  or  agreement  ;  against  the 
latter  indeed  he  might  have  his  writ  of  ejectment,  by  which,  however, 
he  could  recover  damages  only,  and  not  the  possession  {a).  In  these 
times  the  ejectment  was  a  mere  j)crsonal  action  of  trespass,  and  the 
proceedings  were  hy  pone,  or  by  capias  and  distress  infinite  (Jj). 

In  process  of  time, — some  say  so  early  as  tlie  reii^n  of  I]d.  4.  (3  Bl. 
Com.  20\.)  but  certainly  about  the  time  of  //.  7.  when  ion"-  leases 
began  to  obtain, — the  remedy  by  ejectment  ^\•as  extcJided  and  rendered 
more  efhcacious  by  the  object  of  tJic  action  being  completely  changed 
and  the  term  itself  recovered.  This  was  efl'ected  by  the  Courts  of 
Law  resolving  to  give  judgment  in  ejectment  that  the  lessee  in  eject- 
ment should  recover  possession  of  the  land  itself  by  the  process  of  a 
writ  called  an  habere  facias  possessionem  (r). 

From  this  period,  the  practice  in  ejectment  became  wholly  subject 
to  the  control  of  the  Court,  and  a  new  method  of  trial,  unknown  to  the 
coniiuon  law,  was  introduced  (d). 

Jncient  Practice. — It  now  ])ccame  usual  for  a  man  that  liad  a  ri-'lit 
of  entry  into  any  lands,  to  enter  tliereon  and  seal  leases,  and  then  the 
person  that  next  came  on  the  freehold  animo  possidcndi  was  accounted 
an  ejector  of  the  lessee;  by  which  means  any  man  might  lie  turned 
out  of  possession,  because  the  lessee  in  ejectment  would  recover  his 
term  w  ithout  any  notice  to  tenant  in  possession  ;  so  that  the  Courts  of 
Law  made  it  a  standing  rule,  that  no  plaintiiT should  proceed  in  eject- 
ment to  recover  his  lands  against  such  a  feigned  ejector,  witiiout 
delivering  to  the  tenant  in  possession  a  declaration,  and  making  iiim 
an  ejector  and  proper  defendant  if  he  chose  it  (c-).--T])is  rule  of  Court 
became  absolutely  necessary  upon  tlic  alteration  of  the  object  of  the 
action  of  ejectment,  which  was  now  in  rem  ;  for  otherwise  the  Court 
might  have  been  instrumental  in  doing  an  injury  to  a  third  person, 
because  a  declaration  might  otherwise  be  delivered  to  a  stranger,  a 
feigned  defence  be  made,  and  a  verdict,  judgment,    and   eAccullon 

^it  a  Sen    Tract.  1^?.  (6~  Ihl'  .   n„J.  (H,  \W. 


356  When  Ejectment  lies,  and  the  [Chap.  XIY. 

thereon  obtained,  whereby  the  tenant  would  have  been  ousted,  with- 
out notice  of  any  proceedings  against  him  {a). — Upon  this  notice  to 
the  tenant  in  possession,  and  affidavit  thereof  made,  it  Mas  usual  for 
the  tenant  in  possession  to  move  the  Court,  that,  as  the  title  of  the 
land  belonged  to  him,  he  might  defend  the  suit  in  the  casual  ejector's 
name,  which  the  Court,  upon  affidavit  of  that  matter,  used  to  grant, 
and  that  the  suit  should  be  carried  on  in  the  casual  ejector's  name,  the 
tenant  in  possession  saving  him  harmless ;  and  then  the  casual  ejector 
was  not  permitted  to  release  errors  in  prejudice  of  the  tenant  in 
possession,  as  the  suit  Avas  carried  on  in  his  name  by  rule  of  Court ; 
and  the  process  for  costs  was  taken  out  against  the  casual  ejector  who 
■was  oljliged  to  resort  to  the  tenant  in  possession  to  recover  back  the 
same,  and  put  iiis  bond  of  indemnification  in  suit  upon  his  refusal  to 
pay  them. 

Such  leases  were  to  be  actually  sealed  and  delivered,  otherwise  the 
plaintilT  could  maintain  no  title  to  the  term  ;  they  Avere  also  obliged  to 
be  sealed  on  the  land  itself,  otherwise  it  amounted  to  maintenance  by 
the  old  law  to  convey  a  title  to  any  one,  when  the  grantor  himself  was 
not  in  possession  (6). 

Such  was  the  original  method  of  proceeding  in  ejectment  when 
the  term  was  first  begun  to  be  recovered  ;  but  one  alteration  by 
degrees  begat  another,  and  fiction  was  heaped  upon  fiction.  During 
the  exile  of  King  Charles  the  Second,  an  entirely  new  mode  of  pro- 
ceeding wcis  invented  and  introduced  by  Lord  C.  J.  liolle,  which 
method  has  been  followed  ever  since  by  the  Courts,  and  is  therefore 
called  the  modern  practice  in  contradistinction  from  the  ancient  one 
just  described  (c). 

Modern  Practice. — The  new  method  of  proceeding  in  ejectment 
depends  entirely  upon  a  string  of  legal  fictions ;  neither  actual  lease, 
nor  actual  entry,  is  made  by  the  plaintiff  nor  actual  ouster  by  the  de- 
fendant, but  all  are  merely  ideal,  for  the  sole  purpose  of  trying  the 
title.  To  this  end,  in  the  proceedings,  a  lease  for  a  term  of  years  is 
stated  to  have  been  made  by  him  who  claims  title,  to  the  plaintiff, 
■who  is  generally  an  ideal,  fictitious  person,  who  has  no  existence.  In 
this  proceeding,  which  is  the  declaration,  (for  there  is  no  other  process 
in  this  action,)  it  is  also  stated,  that  the  lessee,  in  consequence  of  the 
demise  to  him  made,  entered  into  the  premises,  and  that  the  de- 
fendant, Avho  is  also  now  another  ideal,  fictitious  person,  and  who  is 
called  the  casual  ejector,  afterwards  entered  thereon  and  ousted  the 
plaintiff,  for  which  ouster  the  plaintiff  brings  the  action.  Under  this 
declaration  is  written  a  notice,  supposed  to  be  written  by  the  casual 
ejector,  directed  to  the  tenant  in  possession  of  the  premises,  in  which 

(cv>  2  Pell.  Pr«ct.  IC3  (h)  Ibid  (c)  Ibid. 


Sccl.  I.]         P/occaHiii^s  tin  ri  ill  at  Common  Lan.  '\  O 

notice  the  casual  fjcclor  itifoiius  the  toiiaiit  of  tli'-  a(  lion  !)imiij^i,i  iiv 
the  lessee,  and  assiiii.<  him,  th.il  as  he,  the  camiil  ejcetor,  lias  no  title 
at  all  to  the  [irtniiscs,  he  shall  iiiakr  no  «Ufcnce,  and  therefore  he 
advices  the  tcniiiil  to  appear  in  T'onrt  at  a  ccil.iin  lime  ;nul  d»:fcnd  hl^ 
own  title,  olheruihc  he,  the  casual  ejector,  will  mll'ir  judi^nienl  to  he 
had  apainst  him,  hy  wliicli  the  actual  tenant  will  iiievitahly  be  tnrnc<l 
out  of  possession  (<')• 

The  declaration  is  then  served  on  the  tenant  in  possession,  with  this 
friendly  cauti»»n  annexed  to  it,  who  has  thus  an  oi)portunity  to  defend 
his  title,  which  if  he  omits  to  do  in  a  limited  time,  lie  is  supposed 
to  have  no  ri-,dit  at  all,  and  upf)n  jiid'^ment  hcin.i;  liad  against  the 
casual  ejector,  the  re;  I  tenant  will  he  turned  out  of  possession  liy  the 
sheriiV  {h). 

Hut  if  the  temjit  applies  to  be  made  defendant,  it  is  allowed  him 
upon  this  condition.  That  he  enter  into  a  rule  of  Court  to  coniess  at 
the  trial  of  the  cause  three  of  the  four  requisites  to  maintain  tlie  plain- 
tili's  action,  -jiz.  the  lease  of  the  lessor,  the  entry  of  the  plaint  ill',  a^id 
the  ouster  by  the  tenant  himself,  who  Ls  now  made  defendant 
instead  of  the  casual  ejector;  which  requisites,  as  they  arc  \vhoily 
fictitious,  should  the  defendant  put  the  plaintift"  to  prove,  he  must  of 
course  be  nonsuited  at  the  trial  for  want  of  e\  iderice ;  but  by  such 
stipulated  confessions  the  trial  will  stand  solely  iqion  the  merits  of  tL*^ 
title  (0- 

Upon  this  rule  being  entered  into,  the  declaration  is  now  altered  by 
iuscrtinq  the  name  of  the  tenant  instead  of  the  fictitious  name  of  the 
casual  ejector  ;  aiul  the  cause  goes  to  trial  under  the  name  of  tlie  ficti- 
tious lessee  on  the  demise  of  A.  B.  (the  lessor  or  person  claiun'n'::^ 
title,)  against  C.  D.  (the  now  defendant,)  ami  therein  the  lessor  is 
bound  to  make  out  his  title  to  the  prentises,  otherwise  his  nominal 
lessee  cannot  obtain  judgment  to  have  possession  of  the  lantl  for  the 
term  supposed  to  be  granted.  But  if  he  makes  out  his  title  in  a  satis- 
factory manner,  the  jiulgment  is  given  for  the  nuniinal  iilaintiil',  and 
a  writ  of  possession  goes  in  his  name  to  the  sheriff  to  deliver  posses- 
sion. But  if  tlic  n(ju  d(  findaut  fail^  to  appear  at  the  trial,  and  to 
confess  lease,  entry  and  ouster,  the  nominal  pFaintiii"  nmst  then  indeed 
be  nonsuited  for  want  of  proving  tliese  recjuisilcs,  but  judgment  ^viil 
nevertheless  in  the  end  be  entered  for  him  agalnet  thecaPiial  ejretor  ; 
for  the  condition  on  which  the  tenant  was  admitted  defendiint  is  brol  en, 
and  therefore  the  i)IaiMlillis  put  ag;>iu  V4i  the  same  situafion  as  if  he  had 
never  appeared  at  all.  The  same  procesf,  therefore,  as  would  lia\t'. 
been  had,  provided  no  conditional  rule  had  been  niade,  uiust  now  be 
pursued  as  soon  as  it  is  brolien  ;  but  e\c>utiun  ui<.  be  stayed,  if  au\' 

(n-,  2  Sell.  rracU  161  [b]  :i  «J.  f      t 

^1 


'Mj8  ffhcn  EjcctmciU  lies,  and  the  [Chap.  XIV. 

landlord,  after  the  default  of  his  tenant,  applies  to  be  made  a  de- 
fendant, and  enters  into  the  usual  rule  to  confess  lease,  entry,  and 
ouster  (rt). 

Thus  the  i)ractice  of  sealing  leases  upon  the  premises  (except  in  the 
case  of  vacant  possession,)  and  making  an  actual  entry  and  ouster  (iin- 
kis  to  avoid  a  fine,  are  now  dispensed  with,  and  a  more  easy  and  ex- 
peditious method  is  adopted,  while  the  same  substantial  justice  is  done 
to  the  tenant  in  possession,  by  proper  notice  being  given  him  of  {he 
service  cf  the  declaration  ;  nor  is  there  any  hardship  in  compelling  him 
to  confess  lease,  entry,  and  ouster,  for  they  are  mere  formalities,  and 
have  nothing  to  do  with  the  merits  of  the  case. — The  great  advantage, 
indeed,  which  has  resulted  from  this  fictitious  mode  is,  that  being 
wholly  regulated  by  the  Court,  it  has,  from  time  to  time,  been  so  mo- 
delled, as  to  answer  in  the  best  manner  every  end  of  justice  and  con- 
venience (b). 

An  ejectment,  therefore,  may  be  defined  a  mixed  action,  by  which  a 
lessee  for  years,  when  ousted  of  his  term,  may  recover  possession, 
and  damages,  and  costs.  It  is  real  in  respect  of  the  lands,  but  person- 
al incespect  of  the  damages  and  costs  (c). 

Who  may  have  this  Action. 

Pofeessiou  gives  the  person  enjoying  it  a  right  against  every  man 
\\\\o  cannot  shew  a  better  title  ;  the  party  therefore  who  would  change 
the  possession,  must  first  establish  a  legal  title  to  it :  for  the  proceedings 
in  ejectment  were  instituted  in  order  to  try  who  is  entitled  to  the  pos- 
session of  an  estate  on  title  {d). 

In  order  to  establish  such  legal  title,  the  party  must  have  a  right  of 
entry,  or  he  cannot  bring  the  ejectment ;  for  it  will  not  lie  in  such  cases, 
where  the  entry  of  him  that  hath  right  is  taken  away  by  descent,  dis- 
continuance, twenty  years'  possession,  or  otherwise  ;  and  on  those 
things  whereon  an  entry  cannot  in  fact  be  made,  no  entry  shall  be  sup- 
posed by  the  fiction  of  the  parties  (e). 

Therefore,  ^here  the  assignee  of  a  bankrupt  brought  an  ejectm«it 
for  part  of  the  bankrupt's  estate  before  the  enrollment  of  the  bankrupt's 
estate  made  to  him  by  the  commissioners,  he  was  nonsuited  ;  for  the 
assignment  is  by  bargain  and  sale,  which,  under  stat.  27  H.  8.  c.  16.  is 
ordered  to  be  enrolled  within  six  months :  and  it  is  enacted  by  the  stat, 
13  Eliz.  c.  7-  and  28  /.  1.  c.  19.  that  all  the  bankrupt's  lands,  tene- 
ments, &c.  shall  be  sold  by  deed  indented  and  enrolled  ;  so  that  before 
enrollment,  the  assignees  have  no  legal  title  (/). 

But  in  the  case  of  a  common  bargain  and  sale  it  is  otherwise  ;  for 

(«;2Sell.  Piact.  ic;.  (h)  Ibid.  W  Run.  Kjcct.  1., 

{<l)  7  T.  R.  333.  (e)  Hun.  Eject.  IS.    3  Bl.  Cora.  20G.    2  Esp.  N.  P.  43ff. 

(f,  Ibid.  43;. 


Sect   I.J  J*/(,i  (((Unci's  l/ii  n  ni  nl   (oininon  I. tin.  3;'>C^ 

there  the  cstife  passes  by  tlic  contract,  aiid  i.>  execiitcil  hy  the  statute 
of  Uses  ;  whereas  the  coiniui.'^sionciN  .if  I.  in! nipt  have  a  jiowrr  r\. 
prcssly  rct^ulated  by  statute  {a). 

So,  where  tenant  in  tail  works  a  discontinuanee,  as  by  a  feoflnient  in 
fee  anil  tiles,  the  isFue  in  tail  cannot  maintain  thLs  aelioji,  fur  they 
cannot  enter.  Such  also  is  the  case  as  to  ollur  flcsrenls  wl^ieh  toll  en- 
trios  (/>). 

'liie  Stat.  .iJ  //.  i^.  c.  J,S.  alters  the  common  law,  by  jji\in:?ari.;lit  of 
entry  to  tlie  wife  or  iter  heirs,  alter  the  death  of  the  Iiii^IkuuI,  who  had 
alienf<l  lands  and  tenements  of  the  inherilajice  of  the  wife  :  so  that 
siic  or  her  htirs  may  now  support  this  action. 

So,  by  Stat.  11  //.  1.  c.  20.  it  is  enacted,  TJiat  if  any  woman  hav- 
ing an  estate  in  dower,  or  for  life,  or  in  tail,  jointly  with  her  husband, 
or  solely  to  Ijerownuse,  but  coming  from  iiim,  shall  alien,  discontinue, 
iv.c.  or  suifer  a  recovery,  such  sliall  be  void  ;  and  the  husband's  heir, 
or  he  who  is  entitled  to  the  lands  after  her  death  may  cuter,  and  so 
may  maintain  this  action. — l^nder  this  statute  to  enable  the  husband's 
licir  to  enter  upon  the  land?  of  tJie  gift  of  tlie  husband  and  aliened  by 
the  wife  ai;alnst  the  statute,  the  remainder  must  have  been  limited  to 
the  heirs  of  the  husljand,  not  to  a  stranger  ;  for  tlic  statute  was  in- 
tended for  the  benefit  of  the  husband  and  his  heirs  (c). 

Though  a  good  and  lawful  title  may  subsist  in  the  plaintifl',  yet  he 
may  be  barred  of  his  right  of  entry,  and  therefore  of  his  pov.cr  to  re- 
cover in  this  action,  under  thestat.  21  J.  1.  c.  IG.  which  enacts,  That 
no  person  shdl  make  an  entry  into  lands,  ^-c.  but  williin  twenty  yeais 
after  his  right  and  title  shall  llrst  accrue,  with  the  usual  savings  for  in- 
fants, feme  coverts,  and  persons  insane,  fi-r. 

Therefore,  if  the  lessor  of  the  Ijlaintill'is  not  able  to  prove  himself 
or  his  ancestors  to  have  been  in  possession  within  twenty  year$  before 
the  action  brought,  he  shall  be  nonsuited. 

This  possession  nuist  be  rrn  actual  possession,  not  an  implied  or  pre- 
sumptive possession  nierely. 

Therefore,  in  ejectmcfit  for  mines,  tlic  possession  of  the  manor  is  no 
evidence  to  avoid  the  statute,  there  l)eing  no  entry  w  ithin  twenty  years 
upon  the  mines,  which  area  dislinct possession,  and  may  be  a  dillcrent 
inheritance  (</). 

So  also,  a  verdict  in  trover  for  lead  dug  out  of  the  mine  is  no  evi- 
dence ;  for  trover  may  be  brought  on  property  witliout  possession  (t). 

So,  tlic  possession  of  a  manor  is  not  the  possession  of  a  cottage  liuilt 
thereon  ;  for  if  it  were,  the  lord  would  have  a  heller  title  to  that  than 
to  any  other  part  of  his  estate  (/). 

(a)  Run.  Eject.  15.    3D1.  Com.  2CIC.  2  Ear-  N- P-  431.  Sir  T.  .ioa«*.  I9G. 

(6;  Lit.  ?c(-t.  V.'i.  (('  Cto.  Eliz.  2.  '  d)  2  Str  .1;^ 

(c;  Bull.  >'.  P.  102.  I.  c.  (/).lbfal  I'V 


360  When  Ejectment  lies,  and  the         [Chap.  XIV. 

Receipt  for  rent  by  a  stranger  is  no  evidence  of  possession,  so  as  to 
take  it  out  of  him  in  whom  the  right  is,  for  it  is  no  disseisin  uithout 
the  admission  of  him  who  right  has ;  not  even  though  he  made  a  lease 
to  the  tenant  by  indenture  reserving  rent,  unless  he  make  an  actual  en- 
try. So,  though  the  tenant  declare  tliat  he  is  in  possession  for  the 
stranger  ;  though  it  may  be  proper  to  be  left  to  a  jury,  especially  if  the 
stranger  have  any  colour  of  title  (a). 

If  a  declaration  in  ejectment  has  b^en  delivered  within  twenty  years, 
and  a  trial  had,  whereby  lease,  entry,  and  ouster  has  been  confessed,  if 
the  plaintiif  has  been  nonsuited  in  that  action,  and  brings  another 
ejectment  after  tlie  twenty  years  expired,  the  former  confession  of  lease, 
entry,  and  ouster,  shall  not  be  sufficient  to  save  the  running  of  the 
statute  against  the  plaintiif  ;  for  there  must  be  an  actual  entry  within 
twenty  years  (Z').     But 

Possession  for  twenty  years  without  interruption  shall  be  a  good  title 
in  itself  to  enable  the  party  to  recover  in  ejectment,  a\  ithout  any  other 
title  :  for  an  uninterrupted  possession  for  twenty  years  is  like  a  descent 
■which  tolls  an  entry,  and  gives  a  possessory  right  that  is  suflicLent  to 
support  this  action  (r).  So  that  though  the  defendant  be  the  person 
■who  has  lawful  right  to  the  premises,  yet  he  cannot  justify  ejecting  the 
j)laintifF  who  has  had  twenty  years'  previous  peaceable  possession  :  the 
possession,  however,  must  be  peaceable  and  uninterrupted  ;  for  repeat- 
ed trespasses  from  time  to  time  will  not  gain  a  possession  (cl). 

This  action  therefore,  v.iil  not  lie  by  the  landlord  for  encroachments 
by  the  tenant  on  the^  waste. 

In  such  a  case.  Lord  Kcmjon  revolted  at  the  idea,  that  the  tenant  could 
make  the  landlord  a  trespasser  ;  which,  he  said,  would  unavoidably  be 
the  cas-%  if  the  landlord  could  recover  in  this  action.  His  lordship 
clearly  iield,that  if  a  tenant  inclose  part  of  a  waste,  and  is  in  possession 
thereof  so  long  as  to  acquire  a  possessory  right  to  it,  such  inclosure 
does  not  belong  to  the  landlord  ;  but,  if  the  tenant  has  acknowledged 
that  heheld  such  inclosed  part  of  his  landlord,  this  would  make  a  dif- 
ference (t). 

The  twenty  years'  possession  in  order  to  give  a  title  and  so  bar  an 
ejectment,  must  be  an  adverse  possession  :  for  where  it  appears  not  to 
ha  adverse,  the  statute  of  limitations  docs  not  run. 

Therefore  where  a  man  made  a  mortgage  as  a  collateral  security,  the 
interest  having  been  paiclfor  twcuty  years  and  more,  the  mortgagee  was 
held  not  to  l)e  barred  of  bringing  his  ejectment,  though  the  mortgagor 
had  continued  for  that  time  in  possession :  for  their  titles  being  the 
same,  there  was  no  adverse  possession  (/). 

So  also  in  ejectments  by  joint-tenants,  the  possession  of  one  joints 

(oj  Bull.  N.  P.  101.  (6)  Ibid.  102.  (c)  Esp.  N.  V.  432.  1  I.d.  Raym.  74l. 

{d)  IVes.  169.  ({)  1  Eip.'R.  -IfiO.  (/)  Ld.  RajiD.  740. 


Sect.  I.]         I^rociulinas  tinnin  ni  (Onurnnt    Lttn.  '.WW 

tenant  or  coparcener  is  (he  possession  of  the  otlicr,  so  as  to  jiit vtiil  tlic 
statuteof  limitations  from  ninnint^  against  the  title  of  citlier  :  and  if 
one  joint-tenant  levy  a  fine,  tliouL;h  it  sever  the  jointure,  it  does  not 
amount  to  an  ouster  of  his  companion  {n). 

So,  uitli  respect  to  tenants  in  common,  if  one  of  tliem  l)rini,^an(ject- 
inent  against  tlie  other,  there  must  he  an  actual  ouster  and  adverse  pos- 
session proved,  in  order  to  l>;u'  the  defendant,  f(;r  tliouijh  one  tenant  in 
.onmion  may  disseise  another,  it  must  he  done  hy  actual  disseisin,  and 
not  l)y  hare  perception  of  the  profits  only  ;  for  generally  speakini;-,  the 
possession  of  the  one  is  held  to  be  the  possession  of  the  other  {!>). 

Also,  uheix;  two  are  in  possession  the  law  will  adjudge  it  in  him  that 
hath  the  ri'^ht:  for  the  stiitutc  never  runs  against  a  man  \mi  wlicre  he 
is  actually  ousted  or  disseised. 

^\'herea  right  of  entry  is  given  in  three  months  after  notice  of  pre- 
mises being  out  of  repair,  acceptance  of  rent  after  three  months  ex- 
pli'ed,  does  not  prevent  plaintiD"  from  maintaining  ejectment ;  parlicu- 
Jariy  if  the  prmiiscs  arc  nut  repaired  at  the  time  of  the  action  being 
brought  (c). 

What  shall  be  deemed  an  actual  ouster,  so  as  to  constitute  an  ad- 
verse possession  in  one  tenant  in  common  against  another,  is  matter  for 
the  consideration  of  the  jury. 

Thus,  thirty-six  years' sole  and  uninterrupted  p'^s'^ession  l)y  one  te- 
nant in  common,  without  any  account  to,  demand  made,  or  claim  set 
up  by  his  companion,  was  held  to  be  suQicient  gronml  for  the  jury  to 
presume  an  actual  ouster  t  f  the  co-tenant,  and  they  did  so  presinr.e  (J). 

So,  if  upon  demand  by  the  co-tenant  of  his  njoiety,  tiic  other  re- 
fuses to  pay,  and  denies  his  title,  saying  lie  clai  s  the  whole  and  will 
not  pay,  and  continues  in  possession,  such  possession  is  adverse  and  ou'. 
ter  enough  {c). 

In  ejectments  by  tenants  in  common,  an  entry  by  one  shall  l)e  good 
for  all,  fur  he  shall  be  supposed  to  enter  according  to  his  estate. — A 
man  cannot  be  disseised  of  an  undivided  moiety  ;  and  if  a  man  be  seised 
of  the  whole,  and  makes  a  lease  to  another  of  a  moiety  undivided,  and 
.!  stranger  ousts  the  lessee,  he  mast  bring  his  ejectment  of  a  moie  v, 
tnd  so  if  they  be  both  ousted,  they  must  bring  several  ejectments  {fj 

lor,  where  two  persons  claim  by  the  same  title,  there  shall  not  in 
general  be  an  adverse  possession  presumed,  so  as  to  toll  ati  entry  of  thg 
one,  but  the  entry  of  the  other  being  deemed  always  lawfid,  shall  pre- 
serve tlic  unity  of  the  title  (r^). 

Thus,  where  the  defendant  made  title  under  the  sister  of  the  lessor 
of  tlie  plaintifl",  and  proved  that  she  had  enjoyed  the  estate  above  twenty 

(o;  Salk.  285.  (6;  Co.  I  if.  I«.  b.  3.    Id.  Bivoi.  H23.    3  Salk  422.  •.  c.    2K.fp.  X.  r.  431 

Cf)  1  Esp.  n.333.  (d;  Co*r.3i7.  («;  Ibid.  218.  (/)  Hou.  isa  t»p. -N  v.m. 

SU«  >«i  (it  Co.  Lit  2.13.  E«p.  N  F  434 


362  When  Ejectment  lies,  and  the  [Chap.  XIV". 

years,  and  that  he  had  entered  as  heir  to  her,  the  Court  did  not  re- 
gard it,  because  her  possession  was  construed  to  be  by  curtesy,  and 
not  to  make  a  disherison,  but  by  licence  to  preserve  the  possession  of  the 
brother,  and  therefore  waslield  not  to  be  within  the  intent  of  the  stat- 
ute. But  had  the  brother  ever  been  in  actual  possession  and  ousted  by 
his  sister,  it  would  have  Ijccn  otherwise,  for  then  her  entry  could  not 
possibly  be  construed  to  be  to  preserve  his  possession  [a). 

So,  the  possession  of  one  co-heir  in  gavelkind  is  not  the  possession  of 
the  other,  where  he  enters  with  an  adverse  intent  to  oust  the  other  (6). 

Where  lights  had  been  put  out  and  enjoyed  ^^  ithout  interruption  for 
above  twenty  years  during  the  occupation  of  the  opposite  premises  by 
a  tenant,  that  will  not  conclude  the  landlord  of  such  opposite  premises, 
without  evidence  of  his  knowledge  of  the  fact  which  is  the  foundation 
of  presuming  a  grant  against  him,  and  consequently  will  not  conclude 
a  succeeding  tenant  who  was  in  possession  under  such  landlord  from 
building  up  against  such  encroaching  lights  (c). 

If  there  be  several  lessors  and  you  lay  the  declaration  quod  demise- 
runt^  and  you  must  shew  in  them  such  a  title  that  they  might  demise 
the  Mhole ;  and  therefore  if  any  of  the  lessors  have  not  a  legal  interest 
in  the  whole  premises,  he  cannot  in  law  be  said  to  demise  them ;  for  it 
Is  only  his  confirmation,  where  he  is  not  concerned  in  interest  (c/). 

But,  where  one  claims  under  or  through  the  other,  there  shall  be  no 
adverse  possession. 

Therefore,  though  if  a  cottage  he,  built  in  defiance  of  the  lord  of  a 
manor,  and  quiet  possession  of  it  has  been  had  for  twenty  years,  it 
geems  it  is  within  the  statute,  and  the  lord  shall  not  recover ;  yet  if  it 
were  built  at  first  by  the  lord's  permission,  or  any  acknowledgment 
had  been  since  made  (though  it  Mere  a  hundred  years  since,)  the  statute 
will  not  run  against  the  lord ;  for  the  possession  of  a  tenant  at  will  for 
ever  so  many  years  is  no  disseisin  ;  there  must  be  a  tortious  ouster  (e). 

A  lessor  of  a  plaintiiTmay  recover  in  an  ejectment  a  reversionary  in- 
terest subject  to  a  lease  and  a  right  of  present  possession  in  another  (/). 

Husband  and  wife  may  join  in  a  lease,  without  saying  that  it  was  by 
deed,  though  formerly  held  to  be  necessary  (5-). 

A  mortagee  may  maintain  an  ejectment  in  order  to  obtain  possession 
of  the  mortgaged  premises  or  estate. — But  a  distinction  is  to  be  observ- 
.ed  where  the  ejectment  is  against  the  tenant  holding  under  a  lease  prior 
to  the  mortgage;  and  where  against  the  mortgagor  himself,  or 
against  a  tenant  in  possession  under  a  lease  or  demise  made  subsequent 
lo  the  mortgage  (h). 

For  where  lands  are  let  for  years  and  afterwards  mortgaged,  the  it- 

(a;  Bull.  S.  P.  102.  Co.  Lit.  242.  b.  (h)  1  Bl.  R.  C75  (0  H  East,  372. 

(rf)  Bull.  N.  P.  107.  (t)  Ibid.  101.  !/)  1  T.  R.  761.  in  c 

(ff)  2Co.  Gl.  Bsp.N.  P.  442.  (/i)  Ibid.  135, 


Sect.  I.]        Proceedings  therein  at  Common  Lmr.  .'Jrtl 

imnl's  possession  is  protected,  and  he  cannot  he  turned  out  Iiy  the  mort- 
gagee. Tlie  Courts  however  now  pt'rnilt  the  niorfg.igce  to  proceed  hy 
ejectment  ai;ain?t  such  tenant,  if  he  ha.s  given  notice  to  him  l)cforc  the 
action  tlial  he  does  not  mean  to  distnrh  his  possession,  but  only  requires 
him  to  pay  the  rent  to  him,  and  not  to  the  mortgagor  [a). 

Hul  a  mortgagee  may  recover  in  this  action  aj,'alnst  a  tenant  who 
claims  under  u  lease  from  the  mortgagor  granted  after  the  morti^aqe, 
without  tlie  privity  of  the  mortgagee,  without  giving  sucli  notice  ;  for 
the  mortgagor  has  no  power,  e\prc?s  or  implied,  to  let  leases  not  sub- 
ject to  every  circumstance  of  the  mortgage,  and  therefore  sudi  lessee  is 
a  trespasser,  disseisor,  ami  wrong-doer,  and  may  be  turned  out  by  the 
mortgagee  without  notice  to  quit  [b). 

So,  if  the  mortgai5'ce  assign  the  mortgage,  and  the  assignee  assigns  to 
afiother,  this  last  assignee  may  maintain  this  action  for  the  mortgai^cd 
premises  (r). 

A  second  mortgagee  who  takes  an  assignment  of  a  term  to  attend  the 
inheritance,  and  has  all  the  title  deeds,  and  had  no  notice  of  IJic  first 
mortgage,  may  recover  in  ejectment  against  the  first  mortgagee  (J). 

The  devisee  of  a  term  of  years  may  maintain  ejectment  to  recover 
tlic  term  devised  ;  but  he  must  shew  tlic  assent  of  the  executor  ;  which 
will  be  sufliciently  done  by  proof  of  the  executor  having  paid  a  certain 
-um,  Avlierc  the  term  Avas  devised  to  him  for  life,  he  payhig  to  a  parti- 
cular party  such  sum  (^0- 

Hut,  in  the  case  of  the  devise  of  a  freehold,  the  devisee  may  innnc- 
'liately,  and  without  any  possession,  maintain  an  ejectment  for  The  lands 
tlcvised ;  for  after  the  testator's  decease,  the  law  ca:.ls  the  freehold  on 
the  devisee  :  and  even  should  the  heir  enter  and  die  seised,  and  a  de- 
•jcent  be  cast,  yet,  it  is  said,  the  devisee  may  enter  (unless  he  be  barred 
y  a  fine  levied  by  the  heir  and  five  y ears'. nou  claim)  and  maintain  an 
ejectment  (/j. 

Tenant  by  dei^U  may  maintain  this  action  in  order  to  be  put  into  pos- 
sessiorv,under  the  elegit^  of  the  lands  returned  by  the  inquisition  before 
flic  sheriff  (-). 

Tl>e  cnnuicc  of  a  htalute-merchant  also  may  bring  tiiis  action. 

The  assignees  of  a  bankrupt  may  maintain  an  ejectment  for  a  term  of 
years  or  lands  whfch  belonged  to  the  bankrupt :  for  by  the  assigimient, 
all  the  bankrupt's  property,  real  and  personal,  Is  vested  in  the  assignees, 
under  stat  1.)  KHz.  7.  s.  2.  and  therefore  they  must  be  hivciltd  with  all 
the  power  necessary  to  get  into  possession. 

But  the  assignmetit  only  operates  on  lands  In  tlic  banl;rupt's  posses- 
sion at  the  time  of  the  assignment  made;  for  as  to  future  real  estates, 
there  must  be  a  new  bargain  and  sale  (A). 

'nr-   ]1.i;r.  282.  Ibid  W.  uin.  <b)  IbM  21,  ::.  (r  ;=•.:;-.  Cli  !I    T55. 

:  ■  ."  Co.  Lif  2*0.  h  Jx^)  Don;.  473.  BiilJ  N.  l*.  ,    '  .\(,.   ;:,2. 


364  When  Ejectment  lies,  and  the      [Chap.  XIV. 

A  sale  by  the  commissioners  of  lands  of  which  the  bankrupt  is  seised 
in  tail  l^y  deed  inrolled,  shall  have  the  same  effect  to  bar  the  intail  as 
if  a  recovery  had  been  suffered  of  them  by  stat.  21  /.  1.  c.  19.  s.  12. 

So,  an  award  under  a  submission  to  arbitration,  will  give  a  good  title, 
on  which  to  maintain  this  action. 

Thus,  where  ejectment  was  brought  for  certain  lands,  on  several  de- 
mises of  Grcvith,  Morris,  and  others,  to  support  the  title  of  the  lessors 
of  the  plaintiff,  a  submission  to  arbitration  by  bond  from  Morris,  and  . 
another,  respecting  these  lands,  was  given  in  evidence,  and  an  award 
by  R.  Sheldon,  and  R.  M.  Phillips,  Esqrs.  the  arbitrators,  that  the  lands 
were  the  pro})erty  of  Morris,  and  this  was  relied  on  as  conclusive  evi- 
dence of  the  title  of  Morris.  The  counsel  for  the  defendants  objected 
that  this  Avas  not  sufficient,  for  that  the  award  could  convey  no  title. 
It  migiit  have  been  enforced  by  rule  of  Court,  or  action  on  the  bond, 
if  the  possession  was  refused  by  the  defendant ;  but  that  it  did  not 
avail  there.  Lawrence,  J.  "  I  am  of  a  different  opinion.  The  parties 
chose  these  gentlemen  as  judges  to  determine  the  right  between  them. 
They  have  determined  that  right,  and  their  decision  is  binding  on  the 
parties,  and  I  think  is  conclusive  evidence  of  the  right  between  them 
here."  Verdict  for  the  plaintiff.  The  learned  Judge's  opinion  was  con- 
firmed by  the  Court  of  K.  B.  on  a  motion  for  a  new  trial  in  Mich.  T. 
1803  (fl). 

If  a  rent-charge  be  granted  to  any  one,  with  a  proviso  that  if  the  rent 
be  in  arrear  it  shall  be  lawful  for  the  grantee,  his  heirs  and  assigns,  to 
enter  and  hold  the  lands  out  of  which  the  rent-charge  is  granted  till  he 
shall  be  satisfied  out  of  the  arrears :  this  shall  give  to  the  grantee  such 
an  interest  that  he  may  make  a  lease  of  the  land  by  which  he  may  main- 
tain his  ejectment  (i). 

The  committee  of  a  lunatic  may  bring  an  ejectment ;  but  it  must  be 
in  the  name  of  the  lunatic  ;  for  the  committee  is  but  as  bailiff,  and  can-    ^ 
not  make  leases  of  the  land  (r).  -^ 

An  infant  may  maintain  tliis  action  ;  but  he  must  name  a  good  plain- 
tiff, who  may  be  answerable  for  the  cost  (r/). 

Executors  may  maintain  ejectment  for  land  let  to  their  testator  for 
years,  if  the  testator  is  ousted  ;  for  by  stat.  4  £.  c.  6.  an  action  is  given 
to  executors  for  goods  taken  out  of  their  testator's  possession,  and  the 
act  extends  to  this  case,  because  the  term  itself  is  recovered. — So,-* 
if  the  executors  themselves  of  the  lessee  for  years  are  ousted,  they  ; 
may  have  either  a  special  writ  on  the  case,  or  an  action  of  eject- 
ment (<?). 

(a)  Doe  ex  fiem.    Greville  and  others  o.  Ilopef.     At  Hereford  Oxford  Summer  Assizes, 
1802.  T.'sMSS.  (6")  1  Saund.  112.     1  Lev.  170. 

(f)  Hob.  215.    Hiitt  16.    2Wils.  130.  (d;l3tr.G94. 

<t)  Ksp.  N.  P.  «9-   3  T.  R.  13.    2  Atk.  2C5.    Co.  Lit  12». 


Sett.   l.J         Pvocccdiniia  lluniii  at  ('ommon  l.tiu-.  30.'} 

The  administrator  also  of  a  yearly  tenant  as  long  as  the  Ics?or  antl 
lessee  plcuscil,  may  maintain  an  ejectment;  for  tlie  adminiftrator  has 
the  same  inltrc"^t  in  the  chattel  as  the  intestate  had. — So  if  the  spiritual 
court  grant  ad  mi  uisl  ration  pendente  lite,  giicli  an  admini-slrator  may 
brui:^  this  action. 

An  alien  cannot  raauitain  an  ejectment,  for  he  cannot  take  lands  by 
de.-ctiit. 

As  to  the  isjnie  of  alien-,  and  to  children  l)orn  out  of  the  realm,  it, 
is  bettled  Ijy  .stat.  2<i  K. ,).  s.  2.  that  ehiidren  whose  fathers  and  moth- 
ers, at  the  time  of  their  hirth,  should  he  liege  subjects  of  linglaml,  shall 
be  inheritable  to  lands  within  the  kingJnm,  though  such  children  were 
burn  out  of  the  kingdom  ;  and  by  stat.  7  Jnn.  .5.  and  t  (i.  2.  s.  \'.  all 
childn  n  born  out  of  the  legiancc  of  the  crow n  of  (ircat  Jiritain,  w hose 
fatliers  are  natural-born  subjects,  shall  be  deemed  natural-born  subjects 
and  so  may  inherit  lands. 

VVhcji  a  corporal  ion  ai-grcgatc  is  lessor  of  the  plaintiff,  it  is  said,  they 
nmst  give  a  letter  of  attorney  to  some  person  to  enter  and  seal  a  lease 
upon  the  land,  and  therefore  the  plaintiff  ought  in  such  case  to  declare 
upon  a  demise  by  deed,  (for  they  cannot  enter  and  demise  upon  the 
land  as  natural  persons  can)  though  this  will  be  aided  after  venlict  («) : 
however,  this  seems  to  be  unnecessary  now  ;  for  this  bcin;;  a  fictitious 
action,  the  demise  need  not  now  be  set  out  to  l)e  by  depd  (/;). 

So,  a  corporation  sole  may  bring  ejectment:  as  a  bishop  against  tlic 
copyholders  of  a  manor  belonging  to  the  bishoprick,  for  a  furlViture 
couuuitted  while  tiie  see  was  vacant ;  and  the  lord  of  a  manor  may 
biing  this  action  in  the  like  case  (c). 

But  where  a  pauper  had  been  put  in  possession  of  a  cottage  forty 
years  ago,  by  the  then  existing  overseers  of  the  poor,  and  hail  contin- 
ued in  the  parish  pay,  and  the  cottage  had  been  from  time  to  time  re- 
paired by  diiicrcnt  oycisoers,  till  two  years  ago,  when  the  pauper  dis- 
posed  of  it  to  the  defendant  and  w  ent  away  :  yet  it  was  held,  that  the 
existing  overseers  could  not  maintain  ejectment  for  it,  having  no  deri- 
vative title  as  a  corporation  from  their  predecessors,  so  as  to  connect 
themselves  in  interest  with  the  overseers  by  whom  the  pauper  was  put 
in  possession  ;  and  the  pauper  liaving  done  no  act  to  rerogni/e  his  hold- 
ing under  the  demising  sets  of  overseers  (</). 

But  trespass  cannot  be  maintained  against  a  corporation  as  such  ;  vet 
the  lessor  is  not  without  remedy  ;  for  at  any  rale  the  tenancy  nuy  !f 
determined  by  notice  to  the  corimration  served  on  its  offii-ers ;  and  if 
after  such  determination,  the  cattle  of  any  other  person  b(f  f-mtsd  upon 
the  premises  thoy  may  be  distrained  (e). 

I '  Bull.  N.  P.  9!;.  (h;  \  I U.  Ra]||.  l?.t     «im-  K)««   ;  i« 

"Hull  \  I",  jo:  V'p   V  r.  4in.  ,i     ^  r-tMl 

IS 


;3G0  When  Ejectment  licSy  and  the  [Cliap,  XIV, 

A  copyhoKler,  if  ejected  by  his  lord,  may  maintain  ejectment  against 
liini  {(i)  ;  tor  though  he  is  called  a  tenant  at  will,  yet  it  is  according  to 
the  custom  of  the  manor,  and  he  cannot  be  put  out  while  he  performs 
his  services  {b). — But  in  such  cases  it  seems  to  be  necessary  that  he 
should  be  empowered  either  by  the  custom  of  the  manor  or  the  licence 
of  the  lord,  to  make  a  lease  :  but  even  without  such  a  power  the  copyr 
holder  can  maintain  ejectment  against,  all  persons  but  the  lord  (r). 

If  the  heir  apparent  of  a  copyholder  in  fee,  surrender. in  the  lifetime 
of  his  ancestor  and  survive  him,  the  heir  of  such  surrenderor  is  not 
estopped,  by  that  surrender  of  his  ancestor,  from  claiming  against  the 
surrenderee  {d).  For,  in  order  to  pass  an  estate  by  surrender,  the  es- 
tate must  pass  into  the  hands  of  the  lord,  through  w  hich  it  must  be 
taken  ;  and  a  fine  differs  from  the  case  of  a  surrender  ;  for  that  uill  be 
good  against  the  heir  by  estoppel,  although  it  passes  no  estate  at  all  : 
but  if  a  surrender  be  not  good,  there  will  be  no  estoppel  {(). 

So  the  party  claiming  by  descent  has  as  complete  a  title  without  ad- 
mittance as  with  it,  against  all  the  world  but  the  lord  (/) :  wherefore 
the  court  w  ill  not  grant  a  mandamus  to  compel  the  lord  to  admit  such  a 
copyholder  ;  though  generally  the  lord  is  compellable  by  mandamus  or 
decree,  to  adKiit ;  as  in  case  of  a  surrender  (^). 

So,  a  w  idow  entitled  to  her  free-bench  may  maintain  this  action  be- 
fore admittance  ;  for  it  comes  out  of  the  estate  of  the  husband  :  and  Ss 
a  customary  right,  nomine  dalis,  and  so  declared  by  Bracton  [K). 

But  in  the  case  of  surrender,  no  complete  title  vests  in  the  surren- 
deree till  admittance,  for  till  then  it  remains  in  the  surrenderer  :  and 
if  he  dies,  it  is  so  much  in  hira  that  his  heir  may  maintaki  eject- 
ment (/). 

If,  however,  a  surrender  be  made,  the  admittance  shall  relate  to  that 
time,  so  that  the  surrenderee  may  recover  on  a  demise  laid  between  the 
time  of  surrender  and  admittance  (k). 

For  there  is  no  rule  better  founded  in  law,  reason  and  convenience 
tlian  this.  That  all  the  several  parts  and  ceremonies  necessary  to  com- 
plete a  conveyance  shall  be  taken  together,  as  one  act ;  and  operate  from 
the  substantial  part  by  relation :  thus,  livery  relates  to  the  feoffment ; 
inroUmcnt  to  the  bargain  and  sale ;  a  recovery  to  the  deed  that  leads 
to  the  us3  ;  so  admittance  shall  relate  to  the  surrender,  especially  when 
it  is  a  sale  for  a  valuable  consideration  (Z). 

(a)  8  East,  230.  (6)  Cro.  Eliz.  535.  (c)  Ibid.67S. 

(a)  3  T.  R.  3C5.  (c)  1  Ves.  230.  (/)  2  T.  R.  197.     1  H  ils.  281 

(g)  5  Bur.  2787.  (h)  Hutt.  18  Hob.  181.  2  Danv.  Abr.  18.1.    Ambl.  203. 

(t)  Yelv.  Ul.    Bull.  N.  P.  108.    2VViU.  13.    1  Eaat's  K.  632.   JT.  R.  1G3. 
(•;iT.  R.600.  (/}  5  Bur.  2767. 


Sect.  I.]         Prorec(h'ii>j;s  therein  at  Common  Lnn.  'M'H 

Fur  what  this  Arlion  nill  lie. 

An  ejectment  will  lie  for  nothing  of  wlucli  the  shcriflT  cannot  deliver 
possession  under  an  execution:  therefore  it  will  not  lie  for  incorporeal 
licrcditanirnts,  as  a  rent,  common  per  cause  dc  vicinai^c^  which  is  a 
imrc  prnni^sion,  or  oilier  thiiii^  'ying  in  tyrant,  (juu-  iikjuc  tanpi^  nrc 
vi(i-ri  possiiiit  («/). 

r.ut  it  wi.l  lie  for  common  ai>j)cndaiit  or  ai)i)urt(',nant,  for  tlic  shrrilf 
by  giviiij;  pos-c.-sioii  oi  tlic  land  gives  posFChsion  of  the  common  (/>). 

'Ihestat.  '^2  II.  8.  c.  57,  enacts,  That  where  any  person  shall  have 
an  estate  of  inheritance  in  tithes  or  other  spiritual  profits  wliich  shali 
hv.  in  iay  lands,  he  may  maintain  an  eject nunt  or  otiier  action  for  them. 
—  lias  action  is  now  allowed  where  the  tithes  are  in  the  hands  of  the 
clcri^^y  (r). 

An  ejectment  lies  for  small  tithes  :  tlierefore  the  action  has  been  ad- 
judged to  lie  for  wool,  being  tilhe  ;  and  by  tiic  same  reason  for  an 

An  ejectment  will  lie  by  the  owner  of  the  soil  for  land  snl>iect  to  a 
passage  over  it,  as  the  king's  liighway  :  for  the  kino;  has  nothing  l)ut  tlu^ 
passage  for  hinjself  and  liis  people,  l)ut  the  freehold  and  all  ()ro(its  Ix^- 
long  to  the  owner  of  the  soil,  so  do  all  trees  upon  It,  and  niiiK-s  under 
it ;  therefore  the  owner  may  carry  water-pipes  under  it  (r). 

liut  it  shall  be  recovered  subject  to  tlic  easement ;  which  the  owner 
may  get  discharged  by  a  writ  ml  (/uod  damnum  (./  ). 

An  ejectment  for  a  manor,  generally,  is  bad,  without  expressing  the 
number  of  acres  for  services  belonging  to  the  manor  (5). 

An  ejectment  will  lie  for  a  church  ;  but  it  must  be  demanded  by  thg 
name  of  a  messuage.  In  this  case,  it  was  said,  that  the  curate  may 
have  a  rule  to  defend  (/uoad  a  ricrht  of  entry  to  perform  divine  service  ; 
but  that  case  has  l)een  over-ruled  (//). 

So  an  ejectment  for  "  a  certain  place  called  the  vestry  in  7^."  vas 
licld  well  enough  (/). 

This  action  lies  for  an  orchard  ;  which  may  be  demanded  in  l!ic 
/>nfc//K  either  by  that  name,  or  by  the  name  of  a  garden  (A). 

So,  it  lies  for  a  stable,  and  a  cottage  (/). 

It  seems  to  be  the  better  opinion,  tiiat  an  ejectment  will  not  lie  for  a 
close,  and  that  giving  it  a  particular  name  will  not  make  it  sufficiently 
certain  for  the  sherilf  to  be  able  to  deliver  it :  So  it  will  not  lie  lor  "•  a 
piece  of  land"  {■n). 

(■a)  r.Mll    N.   P..  09.  f/OIM.l.  (c)  K  1-    \.   1'    128. 

(rf)  3  Ld.   Baym.  789  i.f,  I'ur    IJ3.  (/)  nii<L 

(f,)  Esp.  N.  p.  428.      Vi'.'l.  !0.  ik,  K.p.  N    I'.  il'O.     Salk.  250. 

t»)  3  l,tv.  96.  (k)  Cro.  Flir.  tit.    fro.  .'»c.  iH  (t)  'lun.  fc;et.  I'M.- 

■it  Ibid.  Sulk.  251.    Cro.  Ji-    sO.  •■''. 


3G8  When  Ejectment  lies,  and  the        [Chap.  XIV. 

Nor  for  the  third  part  of  a  close,  or  fourth  part  of  a  meadow,  with- 
out Fctling  forth  the  particular  contents  or  number  of  acres  ;  and  such 
number  should  be  stated  with  certainty,  and  not  by  estimation  ;  also 
the  nature  of  the  land,  as  whether  meadow,  pasture,  arable,  icc.  should 
be  mentioned  (a). 

But  for  a  close  called  D.  containing  three  acres  of  land,  was  held 
well  enough  ;  for  "  land"  signifies  arable  land  ;  therefore  both- quanti- 
ty and  quality  were  specified.  The  cases,  however,  on  this  point  are 
contradictory  {b). 

Ejectment  for  "  a  messuage  or  tenement"  is  too  uncertain  ;  the  word 
"tenement"  being  of  more  extensive  signification  than  the  word 
*'  messuage ;"  consequently  it  is  uncertain  what  is  demanded  by  the 
ejectment.  For  the  same  reason  it  has  been  held  that  it  will  not  lie  for 
a  tenement  only  (c). 

Therefore,  where  in  ejectment,  the  plaintiff  declared  of  "one  mes- 
suage or  tenement"  and  had  a  verdict ;  it  was  moved  in  arrest  of  judg- 
ment, because  an  ejectment  will  not  lie  of  a  tenement ;  and  "  messuage 
or  tenement"  is  so  uncertain  that  the  sheriff  cannot  tell  of  what  he  shall 
give  possession;  for  a  tenement  may  be  of  an  ad  von  son,  a  house  or 
land  of  any  kind.  Wilmot  C.  J. — To  be  sure  there  are  maiiy  old  cases, 
•where  judgments  in  ejectment  have  been  arrested  for  this  supposed  un- 
certainty ;  but  I  do  not  recollect  any  very  modern  case:  There  was  a 
late  case  in  B.  R.  where  the  declaration  was  of  a  messuage  and  tene- 
ments, and  that  Court  gave  leave  to  strike  out  the  words  "  and  tene- 
ments," and  to  proceed  for  the  messuage.  I  think  "  a  messuage  or  te- 
nement," in  common  parlance,  means  a  messuage  ;  and  at  this  time  of 
ilay,  no  mortal  imagines  that  a  tenement  means  any  thing  l)ut  a  dwell- 
ing-house, for  by  long  use  it  has  acquired  that  definite  signification. — 
Hcdtcmic  curia,  a  rule  was  made  to  shew  cause  why  judgment  should 
not  be  arrested  {d). 

This  matter  came  on  again,  and  was  debated  by  counsel  on  both 
sides  :  when  the  Court  seemed  inclined  to  get  over  this  objection  if  pos- 
sible, and  took  further  time  to  consider,  until  the  last  day  of  the  term  : 
{Note,  It  was  first  before  the  Court  on  the  second  day  of  Term.]  but 
at  last  they  thought  themselves  bound  by  the  cases  cited,  and  (against 
their  inclination)  arrested  the  judgment. 

But  it  is  questionable,  whether  the  reason  on  which  the  ol^jcction  is 
foimded,  ought  at  present  to  prevail ;  inasmuch  as  the  sheriiinow  de- 
livers possession  of  the  premises  recovered,  according  to  the  direction  of 
the  plaintiff  himself  (e). 

{d)  Run.  Eject.  123.  (6)  fbid.  Cro.  Jac.  435. 

(c)  Klin.  Eject  124.    Cro.  Eliz.  186.    1  East's  R..44I.  (d)  3Wil3.  13. 

(«)  Hun.  Eject.  124. 


Sect.  I.]     Proccvdinij^s  therein  at  Common  Lan'.  :{(39 

An  eject luoiil  for  a  inegsuai;c  <ind  tciicniciit  has  been  held  good  after 
verdict  (a). 

So,  a  mcsfiuagp  or  tencnipnf,  with  other  words  exprcFsinc;  its  mcjin- 
in?,  is  good  ;  as  "  a  messuage  or  tenement  called  tlic  filack  S/vfj7i  ;"  for 
the  addition  reduces  it  to  the  certainty  of  aduellinc^-liousc  (//). 

So,  for  a  metJSiiaqc  or  bur^a^'c  in  //.  i?  t;ood  ;  because  they  Bit,^nify 
the  same  thing  in  a  borough. — So,  for  a  messuage  or  dwelling-house ; 
for  they  arc  synonynious  terms  (r). 

So,  ejectment  for  a  house  i?  good;  but  it  i?  faid  tliat  in  {\\c pracipe 
it  onglit  lo  1)6  dcmande<l  by  the  name  of  "  a  niessua2;c."  {d). 

So,  ejectment  lies  for  part  of  a  house  ;  as  of  a  chamber  in  a  house  ; 
or  of  one  room  in  a  houj^c  (^). 

But  an  ejectment  of  a  kitchen  was  determined  to  be  bad  ;  for  though 
the  word  ha  well  understood  in  common  parlance,  yet  because  any 
cliamber  in  a  house  may  I)e  applied  to  tliat  use,  tlie  sherlfT  Jiath  not 
certainty  enough  to  direct  him  in  the  execution  ;  and  the  kitchen  may 
be  chani^cd  between  judgment  and  execution  (/). 

The  covu'ts  have  long  discontinued  the  rules  which  govern  the 
privripr,  and  allow  mnny  things  to  be  recovered  in  this  action,  which 
cannot  be  demanded  in  that  writ.  Indeed  it  lias  repeatedly  been  de- 
termined that  such  precise  certainty  is  not  requisite  in  ejectment,  as  in 
prar'ipc  quod  rcddat ;  in  which  it  is  necessary  to  descr  ibe  the  lands  de- 
manded once,  at  least,  ^\ith  certainty  and  [)recision,  that  the  d(  fcntlant 
may  know  what  he  is  to  defend.  F/ven  in  that  proceeding,  whenever 
the  term  used,  cither  in  respect  to  quantity  or  quality,  was  siiUlcieiitly 
certain  and  notorious  to  answer  that  purpose,  it  was  good,  though  not 
particularly  named  in  the  llegistcr. — Of  late  years  many  tiiingG  have 
been  improved  by  art,  which  having  required  new  appellations,  are 
now  not  only  perfectly  understood  by  the  law,  but  fiimiliar  tocoujmon 
understanding,  though  not  to  be  foiuul  in  ancient  law-books.  Words 
and  names  are  iirbitrary  :  and  as  men  contracted  by  such  new  appella- 
tions, it  was  but  reasonable  to  permit  the  remedy  lo  follow  the  nature 
of  the  contract.  Indeed,  whilst  ejectments  were  compared  to  real  ac- 
tions, ajul  arguments  were  drawn  by  aiialogy  from  them,  they  were  of 
course  fettered  :  and  this  was  very  nuich  the  case,  till  after  the  rei^n 
of  James  the  First.  Hut  of  later  times,  an  ejectment  has  been  consider- 
ed with  more  latitude  and  greater  lil)eru!ily,  as  a  fictitious  action  to 
try  titles  with  more  ease  and  dispatch,  and  with  less  expense  lo  the 
parties  (^). 

Even  formerly  an  ejectment  would  lie  for  a  hop-yard. — So,  for  aldcr- 
oarr,  a  provincial  term  well  known  in  Norfolk^  where  it  signifies  land 
•ovcrcd  with  alders. — In  l'or!:shire,ii  is  common  to  bring  this  action 

.'a)  1  T.  R   n.  .     (%>  I  Ll.n«>Tn   191.     Ccp.  350.    Bun.  E>ol.  i:.V 

1  r)  Ibid.  fd)  Ibid.  15?.  Cro.  J*-:.  r>b4.  (r)  2  5U.  C».  a.Wils   4?. 

i '  ,'  Run  Ejctl.  JCC  ^t'  Ibii  iZe 


370  When  Ejectment  lies,  and  the        [Chap.  XIV. 

for  cattle-gates,  agreea])Ie  to  which,  it  has  been  held,  that  an  ejectment 
will  lie  for  a  beast-gate ;  a  term  used  in  Suffolk  to  denote  land  and 
common  for  one  beast.  A  cattle-gate  is  a  distinct  thing  from  a  right 
of  common  ;  it  passes  by  lease  and  release  ;  cannot  be  devised  but  ac- 
cording to  the  statute  of  Frauds  ;  and  has  been  decided  to  be  a  tene- 
ment, uithin  stat.  13  ^^  14  C.  2.  c.  12.  for  the  purpose  of  gaining  a  set- 
tlement (rt). 

Where  an  ejectment  was  brought  for  a  croft  and  an  acre  of  meadow, 
the  plaintiff  had  a  verdict,  and  a  special  judgment  for  his  acre  of  mea- 
dow, releasing  the  costs  and  damages  for  all ;  for  he  Avas  allowed  his 
costs,  because  by  the  judgment  he  had  a  just  cause  of  suit  against  the 
defendant. 

So,  this  action  will  lie  for  fifty  acres  of  furze  and  earth,  and  fifty 
acres  of  moor  and  marsh  (b). 

It  lay,  also,  for  so  many  acres  of  bog  in  Ireland,  where  that  word 
has  but  one  signification  and  comprehends  only  one  sort  of  land. — So, 
it  will  lie  for  mountain  in  Ireland^  because  the  word  mountain  is  rather 
a  description  of  quality  than  the  situation  of  the  land. — So,  for  '<  a 
quarter  of  land,"  in  Ireland,  for  it  may  be  a  term  as  well  known  there 
as  mountain  is:  and  that  the  Courts  here  will  will  intend  (c). 

An  ejectment  may  be  brought  for  ten  acres  of  wood  and  ten  of  un- 
derwood; for  they  are  of  diiTerent  natures ;  and  even  if  otherwise  bis 
pctitum  is  no  objection  in  an  ejectment  (d) . 

^V'hether  it  will  lie  for  a  fishery  seems  rather  doubtful ;  the  old  cases 
are  against  it;  but  the  more  modern  opinion  inclines  to  support  the  ac- 
tion (f ).  For  though  an  ejectment  de  piscaria  in  such  a  river  has  been 
holden  ill,  and  the  action  will  not  Vic  pro  quodam  rivulo,  she  aquce  cursu 
called  D.  because  it  is  impossible  to  give  execution  of  a  thing  that  is 
transient  and  always  running :  the  doubt  however  seems  to  apply 
merely  to  the  name  l)yiwhich  it  is  recoverable,  for  an  assize  will  certain- 
Jy  lie  for  a  piscary,  and  there  is  no  doubt  that  a  fishery  is  a  tenement ; 
trespass  will  lie  for  an  injury  to  it,  and  it  may  be  recovered  in  an  eject- 
ment ;  and  where  a  fishery  is  demised,  it  will  be  presumed  that  the  soil 
paspcd  along  with  it  (/). 

But  it  lies  for  a  boilary  of  salt ;  for  that  is  not,  like  a  piscary,  tran- 
sient and  running,  but  the  water  is  fixed  within  a  certain  space  and 
may  be  taken  to  be  part  of  the  soil ;  and  by  the  grant  generally  of  a 
boilaryof  the  soil  itself,  passes  (§•). 

An  ejectment  however  for  a  water-course  or  stream  of  water  is  ill, 
for  possession  of  it  cannot  be  delivered :  it  should  be  of  so  much  "  land 
covered  with  water"  (/<). 

(«;  Run.  Bject.  12S.  (h)  *Bur.2C72.  (c)  Run.  Eject.  12R. 

{d)  Ibid.  129.  e)  Ibid.  13W  (/)  I  T.  R.  3SJ.  (s)  Run.  Kj,ect.  131. 

(.'•)  Ebp.  N.  P.128.  Velv.  U3. 


Sect.  1.)         Proctedinfrs  therein  at  Common  Law.  'Mi 

This  aclioii  lits  for  the  fust  crop;  for  tlie  first  grass,  prima  ton^ura, 
is  tljc  best  profit  of  the  property,  wlierefore  he  uho  liiis  it  is  «■  Iccmccl 
the  proprietor  of  the  larul  itself,  till  the  contrary  he  proved  (ji). 

So  an  ejectment  lies  for  herbage  ;  herbage  being  the  most  signal  pro- 
fit of  the  soil,  and  the  grantee  having  at  all  times  a  right  to  enter  and 
take  it  (//). 

So,  it  should  secui,  this  action  would  lie  for  the  hay-grass  and  aftcr- 
nnth  of  a  n>eado\v  ;  for  the  same  reason  (r). 

So,  it  u  ill  lie  for  a  sliee[)-\valk  ;  as  pro  paslnra  centum  ovium,  that  is, 
as  much  land  as  w  ill  feed  one  hundred  sheep  (r/). 

lUit  it  \\ill  not  lie  for  pannage;  that  not  being  the  immediate  pro- 
duce of  the  soil  itself,  l)ut  merely  the  masts  that  fall  froMi  the  trees,  on 
which  the  swine  feed  (r). 

An  ejectment  lay  at  couunon  lavv  for  a  rectory,  uhich  consisting  of  a 
church,  glebe  lamls  and  tithes,  has  been  said  to  resemble  a  manor  ;  the 
church  being  compared  to  the  mansion-house,  the  glebe  lands  to  tiic 
demesnes,  and  the  tithes  to  tiie  services. 

Chapels  having  become  lay  iniieritanccs,  arc  recoverable  in  ejectment 
like  other  lay  estates  ;  a  chapel  should  however  be  demanded  by  the 
name  of  a  messuage. 

Ejectment  will  not  lie  for  encroachments  on  the  wafte,  made  by  the 
tenant. 

On  a  lease  of  ground  to  build  on,  if  the  building  corresponds  with 
the  abuttalsvthough  they  do  not  with  the  measured  distance,  as  set  out 
in  the  lease,  if  the  lessor  has  seen  the  progress  of  the  building  without 
objection  made,  he  shall  not  be  allowed  to  claim  the  part  inclosed  upon, 
but  his  acquiescence  shall  be  presumed  (  /'). 

So,  where  a  man  suilVrs  another  to  build  on  his  ground  without  set- 
ting up  a  right  title  till  afterwards,  a  court  of  equity  will  oblige  the 
owner  to  permit  the  person  building  to  enjoy  it  qjiietly  (§•). 

Of  the  Aclion  of  Kjtclmenl,  nhrrc  the  Ttnnnl  is   in  Pos- 
session. 

As  the  old  mode  of  proceeding  must  be  adhered  to  in  very  few  cases, 
we  have  noticed  those  cases  under  a  separate  head ;  conceiving  that  plan 
to  be  more  perspicuous,  than  introducing  them  incidentally  in  treating 
of  that  part  of  the  sul)jcct  which  regards  the  modern  method  of  ran  y- 
ing  on  the  action. 

Having,  therefore,  concisely  stated  the  general  prlncii)lc  and  pructirc 
of  this  action,  and  enumerated  the  cases  in  wliich,  .•,?'.l  tl.nMhinis  for 

(n)  frn   Car    j-j.  :lj   iii,-.    i  o  •     ..    ,  .  ][    j^jg. 

(rf)  Run.  Kjecl.  13.1.  ','.' Jbi4.  '/>  iiuo.-rjecT.^A  ^  -• 

is)  2  Alt   «•)     ■!  II  id   ■-■•■'. 


372  IVhcn  Ejectment  lies,  and  the  [Chap.  XIY. 

what,  it  lies,  we  proceed  more  particularly  to  consider  the  present 
practice  in  comiiion,  and  indeed  with  the  exception  juentioned,  in  all 
cases. 

The  cases  that  more  ira mediately  apply  to  the  subject  of  this  work, 
are  thote  in  which  a  landlord  is  compelled  to  have  recourse  to  this  re- 
iuclIv  in  consequence  of 

let,  His  tenant  holding  over  without  his  permission  and  against  his 
consent  after  the  term  has  expired  by  effluxion  of  time  :  for  a  man  may 
come  in  by  rightful  possession  and  yet  hold  over  adversely  without  a 
title,  and  if  he  does,  such  holding  over,  under  circumstances,  will  be 
equivalent  to  an  actual  ouster  (a). 

2dly,  His  tenant  determining  the  lease  by  non-payment  of  rent,  or 
non-performance  of  covenants,  where  a  right  of  re-entry  and  forfeiture 
are  conditioned  on  the  breach  of  them. 

In  tliese  cases  the  modern  method  of  proceeding  prevails,  for  tlie 
nature  of  which  Me  refer  the  reader  to  the  introductory  part  of  this 
title. 

The  proceedings  in  the  Court  of  King's  Bench  may  be  either  by  bill 
or  orisrinal,  but  the  latter  mode  is  preferable,  as  no  writ  of  error  can  be 
brought  thereon  except  in  Parliament. — In  the  Common  Pleas  they  are 
always  by  original  (0). 

The  declaration  and  notice  are  the  first  process,  no  writ  being  sued 
out(r). 

Ejectment  being  a  local  action,  the  venue  must  be  laid  in  the  county 
in  which  the  premises  are  situate.  Proceedings  being  in  rem,  the  efiect 
of  the  judgment  cannot  be  had,  if  the  venue  be  laid  in  a  ^vrong  place. 
Possession  is  to  be  delivered  by  the  sheriff  of  the  county,  and  as  trials 
in  England  are  in  particular  counties,  the  oflicers  are  county  officers ; 
the  judgment  therefore  could  not  operate,  if  the  action  was  not  laid  in 
the  proper  county  {d). 

But  the  premises  being  laid  to  be  in  Farnham,  and  proved  to  be  in 
Farriham  lloyal,  is  not  a  fatal  variance,  unless  it  be  shewn  that  there  are 
two  Farnhams  (<?). 

As  the  plaintiJI  must  recover  by  the  strength  of  his  ovsn  title,  he 
Kiufit  shew  a  good  and  subsisting  one  at  the  time  of  the  ejectment 
l)rought,  and  therefore  though  the  plaintiff  by  the  new  method  of  pro- 
ceeding is  not  obliged  to  make  an  actual  entry,  or  a  real  lease,  yet  he 
must  lay  the  commencement  of  the  supposed  lease  in  his  declara- 
tion preceding  the  ouster  and  ejectment  of  the  defendant ;  because  the 
wrong  complained  of  by  the  plaintiil'  is,  that  the  defendant  entered 
\ipon  his  possession,  which  he  hath  title  to  by  virtue  of  the  demise 

(n)  Cowp.  218.  ih)  C  3ell,  Pract.  IfiS.  (c)  IbiJ 

(<'i  <;  Moil.  21'2.    Co^^•r•  l7o  CO  15  Easl'-'  1'   ? 


.^cct.  I.]       Proceedings  thcriin  at  Common  Lan.  .'iTJ 

mcntioncil  in  the  drcluration;  therefore  if  the  ejectment  and  onstrr 
t;ljouUl  be  laid  before  tlic  coimnenccment  of  the  lease,  llioui^h  i^uch 
ouster  he  ^^ronu:;  yet  the  pliiintiirou^ht  nut  to  complain  of  it,  for  it 
-was  no  wrong  to  liini,  iniismiicli  as  by  liis  own  bliew  ini^  it  av.is  done  be- 
fore his  title  coniitienccd  (^/). 

AS'hcre  a  dcmi5c  was  laid  on  tlic  '24tli  of  June,  to  hold  from  tlie 
said  21th  ol'  J tiJtCy  by  virtue  of  whicii  on  the  day  and  year  last  men- 
tioned he  (tlie  plaintill)  had  entered,  and  the  defendant  afterwards  (to 
wit)  on  the  21th  oi  June  had  evicted  him,  it  was  held  to  be  bad,  for 
front  being  exclusive,  the  lease  did  not  commence  till  the  2.3lh  of 
Juiir  {b). 

The  word  "  from"  liowevcr  has  since  received  a  more  liberal  con- 
stnictiun,  and  '*  from  tlie  day  of  the  date"  are  now  held  to  import  ei- 
ther inclusively  or  exclusively,  so  as  to  give  cilect  to  the  deed,  and  to 
support  the  intention  of  tlie  parties  (<). 

But  where  j)osscssion  had  been  demanded  on  the  5th  of  Or/o^rr  of 
the  defendant,  who  had  been  tenant  at  will  to  the  lessor  of  the  plaintiil', 
and  an  ejectment  was  brought,  and  the  demise  was  laid  on  the  Istol' 
October,  it  was  adjudged  that  the  plaintilf  could  not  recover,  the  tenan- 
cy not  havinc;  been  determined  until  after  the  day  of  the  demise  in  tlw, 
declaration  (^/). 

In  ejectment  on  the  demise  of  an  heir  by  descent,  tlie  demise  Mas 
laid  on  the  day  the  ancestor  died,  and  held  well  enough  after  verdict ; 
for  as  to  the  fraction  of  a  day,  a  iiction  of  law  may  heal,  but  shall  not 
hurt  (r). 

So,  where  the  ejectment  was  brought  by  a  posthumous  son,  and  the 
demise  laid  from  the  time  of  his  father's  death,  J>ord  Ilardnicke  ir>- 
clincd  to  think  that  it  was  good,  and  that  the  dcftrulant  would  be  es- 
topped to  say  he  was  not  born  at  the  lime  of  the  demise  laid,  by  stat. 
lOvSw  11  /r.  3.  c.  1G(/). 

But  it  is  not  necessary  to  lay  any  day  certain  upon  wliich  the  plain- 
ti(T  entered  ;  it  is  suflicient  to  lay  a  demise  after  the  title  accrues,  and 
then  say  in  general  "  that  he  afterwards  entered,"  Src.  for  so  are  the 
precedents  (.,'■). 

The  declaration  should  state  the  ejectment  by  the  defendant  to  have 
been  done  sul)sequent  to  the  date  of  the  supposed  lease  made  to  him  by 
the  lessor  of  the  plaintilf;  for  otherwise  the  ejectment,  which  is  the  in- 
jury complained  of,  would  precede  the  time  j^t  which  the  pljiiiiiir3 
title  accrued,  so  that  there  could  be  no  cause  of  action. 

But  thoui^h  such  be  the  proper  form  of  declaring,  yet  this  f)eing  a 
fictitious  action,  it  is  not  fatal  if  laid  otherwise  ;  for  in  cases  that  have 

(o)E»p    N.  P.  44J.  Run   Eject  2U       1  liur.  I'JJ  (b)  K.t9   N   V-  M4    1  Siil.  7. 

^c)   lluii.  LjecL  215.  Cowp,  IL  (•')*r    n.  f.8l.  ^e^  4  Will.  27«. 

I'J 


3*/4  When  Ejectment  UcSy  and  the        [Chap.  Xtf. 

occurred  where  the  ejectment  was  laid  prior  in  point  of  time  to  the 
demise,  yet  the  Court  held  it  good  (a). 

Thus,  in  ejectment  the  plaintiff  declared  upon  a  lease,  dated  1st 
Fcbrmnj  174)2,  to  hold  from  the  8th  of  January  before,  that  afterwards 
viz.  28th  January  1752,  the  defendants  ejected  him.— It  was  insisted 
for  the  defendants,  that  the  ejectment  was  laid  to  be  before  the  plain-- 
tiff's  title  under  the  lease,  which  was  not  m.ade  till  1st  February,  and 
1  Sid.  7.  was  cited  ;  but  it  was  holden,  that  the  day  of  the  ejectment 
being  laid  under  a  viz.  was  surplusage,  and  that  "  afterwards"  should 
relate  to  the  time  of  making  the  lease,  and  then  all  would  be  well 
enough,  and  the  plaintiff  had  a  verdict  (b). 

For  the  plaintiff  need  not  mention  in  his  declaration  any  particular 
day  of  the  ouster,  provided  it  appears  to  be  subsequent  to  the  term 
commenced,  and  before  the  action  be  brought ;  though  in  the  prece^ 
dents  a  day  certain  is  always  laid  (c). 

In  the  case  of  an  ejectment  to  avoid  a  fine,  however,  an  actual  entry 
is  necessary  :  and  the  plaintiff  cannot  lay  his  demise,  or  recover  the 
mesne  profits  before  such  entry  (d). 

The  declaration  should  also  state,  as  has  been  before  observed,  both 
the  quantity  and  the  nature  of  the  land  to  be  recovered. 

In  like  manner,  where  the  ejectment  was  for  five  closes  of  arable 

and  meadow,  called containing  twenty  acres  in   D.  upon  not 

guilty  pleaded,  and  verdict  for  the  plaintiff, judgment  was  arrested,  be- 
cause it  was  not  shewn  how  much  there  was  of  one,  and  how  much  of 
the  other  (c). 

But  the  plaintiff  need  not  declare  for  the  exact  quantity  which  he 
has  a  right  to  recover,  for  he  may  declare  for  any  indeterminate  quan- 
tity, and  the  form  now  used  is  to  viz.  one  thousand  acres  of  pasture^ 
one  thousand  acres  of  arable,  &c.  for  he  shall  recover  according  to 
the  quantity  to  which  he  proves  title. 

Therefore  where  the  plaintiff  declared  in  ejectment  of  onehundr€d 
acres  of  land,  and  shewed  his  lease  in  evidence  only  for  forty  acres ; 
and  it  was  said  that  he  had  failed  of  his  lease,  for  there  was  none  such 
as  that  of  which  he  counted  ;  yet  it  was  ruled  to  be  good  for  so  much 
as  was  comprised  in  the  lease,  and  that  for  the  residue,  the  jury  might 
find  the  defendant  not  guilty  (/). 

So,  if  the  plaintiff  proves  the  title  to  but  a  moiety  of  that  for  which 
he  declares,  he  shall  only  recover  such  half  :  as  where  he  declared  for 
a  house,  and  proof  went  to  shew  that  only  part  of  it  was  built  on  the 
plaintiff's  land  by  encroachment,  he  recovered  so  much  as  was  built 
on  his  land  (g). 

(a)  Cro.  Jac.  96.,  ("i;  BuJI.  N.  P.  IBS.  (c)  Cro.  Jac  3!I. 

(rf)7T.  n.  71!7.  (t;  Salk.  254.  (./■)  Cro.   Elfz.   12. 

ig)  1  Lev.  334. 


Sect.  I.]       Proceedings  l/icrciii  at  Common  Law.  M  -^ 

But  thoiip;li  part  may  I)C  recovered  on  a  demand  for  the  whole,  the 
reserve  will  nol  hold  ;  for  if  the  plainli/l"  prove  more  than  he  has  de- 
clared for  he  Fhall  not  recover  it,  for  he  can  recover  no  more  tiian  he 
goes  for  in  his  decJaration  (a). 

But  as  to  llie  plaintilfb  title,  he  5ha!l  recover  accordinc;  to  wliat  it 
really  is,  thouj^h  he  declare  for  a  lonijcr  term  than  he  has  a  right  to 
recover. 

Therefore,  where  tlie  lease  declared  upon  was  from  the  2.51h  of 
March  176,5  for  seven  years,  the  j)laintil]'  proved  that ./.  .S".  was  seised, 
and  tiiat  by  imlcnture  in  ITO.J  he  ileniis-ed  the  premises  in  question  to 
D.  for  seven  years,  to  commence  at  Midsummer  irO.J,  and  that  in 
JG  t7  D.  assii^ned  tlie  residue  of  tlic  term  then  unexpired  to  ('ar  ml  hers. 
it  was  insisted  for  the  defendant,  that  though  iu  ejectment  the  lease  is 
fictitious,  yet  the  plaintlfT  must  declare  on  such  a  lease  as  suits  with 
the  title  of  his  lessor ;  Iiere  if  he  recover  at  all,  he  must  recover  a 
term  which  is  of  two  years  longer  duration  than  his  title.  But/>er 
Lord  Mansfield  there  is  nothing  in  tlie  objection,  for  if  the  lessor  have  a 
title,  though  but  for  a  Aveek,  he  ought  to  recover ;  for  the  true  question 
in  ejectment  is,  who  has  tlie  possessory  right. — Suppose  a  person  has 
an  interest  for  three  years  only,  and  should  make  a  lease  for  five  years, 
it  would  be  good  for  the  three  years  (/>). 

A  declaration  in  ejectment  contained  two  demises  l>y  two  dilTcrent 
lessors  of  two  distinct  undivided  thirds;  judgment  was  given  against 
the  plaintiir  to  recover  his  said  terms.  On  error  it  appeared  from  the 
facts  stated  on  a  bill  of  exceptions  to  the  judges,  directions  on  a  point 
of  law,  that  the  ejectment  respected  only  one  undivided  third  :  held 
well  enough  on  this  record,  wliere  tlie  point  was  only  raised  l)y  bill 
of  exceptions.  Scmblc  that  it  would  have  been  well  even  in  a  special 
verdict  (r). 

Where  the  title  is  in  several  persons,  w  ho  are  severally  concerned  in 
interest,  it  is  usual  to  declare  by  several  distinct  counts,  upon  several 
demises;  therefore  when  a  term  is  limited  to  trustees  for  securing  the 
payment  of  an  annuity,  or  portions,  SlC.  though  the  trustees  seldom 
act,  yet  it  is  usual  to  declare  upon  their  demiiie,  and  also  ujion  the 
demise  of  the  cestui  fjue  trust.  By  this  means  in  suoh  and  similar  cases, 
tlic  plaintid'is  not  confuud  to  one  demise,  but  may  resort  to  any  otiur 
which  he  has  stated,  and  under  which  he  may  be  able  to  prove  a  title  : 
•ind  where  several  demises  arc  apparently  inconsistent,  the  Court,  to 
.issist  the  title  of  the  lessor  of  the  plaintif]',  would  perhaps  permit  him 
to  enter  a  non-pro^,  as  to  all  the  demises  but  that  which  he  can 
legally  sustain ;  and  after  verdict,  if  by  any  means  the  plaintilT  caH 

[n]  1  Bur  030.  [b]  Bedford  (I w"  <>''  earnithcr.;  v.  Daade  n.  6il.  »t  MWJIwcx  it.tcr 

T,  T  6  n.  3    ))'.Il  N.  P,  lOfi.  [rj  2  Bw.  5J  Pill.  >'.  R  'i 


376  When  Ejectment  lies,  and  the  [Chap.  XIY. 

be  supposed  to  have  title,  as  stated  in  the  declaration,  the  Court  will 
support  it  {a). 

If  the  declaration  states  the  demise  to  the  plaintiff  to  be  of  more 
lessors  tlian  one,  it  must  appear  that  each  lessor  had  a  title  to  the 
whole  of  the  land  or  premises  demised,  or  it  will  be  bad  ;  for  if 
one  of  them  has  not  an  interest  in  the  whole,  he  cannot  be  said  to 
demise  it  {b). 

Therefore,  where  the  plaintiff  declared  in  ejectment  on  a  lease 
made  by  yl.  and  B.  and  on  not  guilty  pleaded,  the  jury  found  a 
special  verdict.  That  J.  was  tenant  for  life  of  the  lands  in  question, 
and  Oiat  B.  had  the  remainder  in  fee,  and  that  J.  was  living ;  on  this 
iinding,  it  Avas  adjudged  against  the  plaintiff ;  for  it  was  not  the  lease 
of  A.  and  B.  but  the  lease  of  J.  during  his  life,  and  the  confirma- 
tion of  5   (c). 

So,  an  ejectment  cannot  be  maintained  on  a  joint-lease  by  tenants 
in  common  ;  for,  as  they  are  in  by  several  titles,  the  freehold  is 
several,  and  consequently  each  cannot  demise  the  whole.  There 
should  therefore  be  a  distinct  count  on  the  demise  of  each,  or  they  may 
join  in  a  lease  to  a  third  person,  and  such  person  may  make  a  lease 
to  try  the  title  (d). 

But  joint  tenants  may  join  in  a  lease  to  try  the  title :  for  being  seised 
per  mjj  etper  tout,  each  has  title  to  the  whole,  wdierefore  the  demise  of 
each  is  good  (e). 

For  the  same  reason,  coparceners,  it  has  been  held,  may  join  in  a 
lease  to  the  plaintiff  in  ejectment,  tnmen  qucere  de  hoc  (/):  for  M'here 
\\\  ejectment  the  plaintiff  declared  of  a  lease,  by  two  coparceners, 
quod  demiserunt,  exception  being  taken  to  it,  the  exception  was  allow- 
ed, because  the  lease  was  several  as  to  each  coparcener  for  her  respective 
moiety;  for  though  they  have  but  one  freehold  Aiith  regard  to  their 
ancestor,  and  therefore  if  they  are  disseised  shall  join  in  an  assise,  yet 
as  to  their  disposing  power  thereof  they  have  several  rights  and  in- 
terests, so  that  neither  of  them  can  lease  or  give  away  the  whole. — 
The  usual  mode,  however,  is  to  join  in  a  lease  to  a  third  person  who 
demises  to  the  plaintiff;  for  a  demise  of  all  the  parts  is  a  demise  of  the 
whole  (p-). 

In  ejectment  on  the  several  demises  of  two  persons,  although  the 
evidence  shews  the  title  to  be  exclusively  in  one  of  them,  the  other 
cannot  be  compelled  to  be  examined  as  a  witness  for  the  defend- 
ant (^). 

In  ejectment  on  the  several  demises  of  three  persons,  each  demise 
bejng  of  the  whole,  the  lessors  of  the  plaintiff  are  entitled  to  a  verdict, 

(a)  T<Mn.  E.iect.  D)l.   1  Wils.  1.2.  Str.  903.  1180.5  T.  R.  15.  (&)  Esp.  N.  P.  448. 

Ce;  Ihitl.  6  Co.  14.  b.  {d)  Cro.  Jac.  IGC.  Co.  Litt.  200.  ».  3  Wils.  232.  2  Str.  118!. 

I/'}  1  LU.  Kayna.  726.  (£)  Bac.  on  Lea.  194.  (k)  3  Campb.  177. 


Scot.  I.]  Procef (linens  therein  at  Common  Lnn.  377 

upon  evidence  tliat  they  jointly  granted  a  lease  to  tlie  defendant,  wliicU 
has  exj)ircd  (<?)• 

If  four  tenants  in  common  jointly  demise  from  year  to  year,  such  of 
ihem  as  give  notice  to  quit  may  recover  their  Keveral  moieties  in  eject- 
ment, on  their  several  demises  (/;). 

The  plaintid  in  ejectment,  under  the  several  demises  of  two,  may, 
after  notice  to  quit,  recover  the  possession  of  premises  held  by  the  de- 
fendant as  tenant  from  year  to  year,  upon  evidence  that  the  common 
agent  of  the  two  had  received  the  rent  from  the  tenant,  which  was 
stated  in  the  receipts  to  be  due  to  the  two  lessors;  even  assuming  such 
receipts  to  be  evitleiice  of  a  joint-tenancy  ;  for  a  several  demise  severs 
a  joint-tenancy  :  and  supposing  the  contract  uith  the  tenant  to  have 
been  entire,  no  objection  lies  on  that  account  to  tlie  plaintiif's  recovery 
in  this  ca«e,  as  he  had  the  \n  Iiole  title  in  him  (r). 

In  ejectment  brought  uj)on  the  joint  demise  of  several  trustees  of  a 
charity,  it  is  not  enough  for  the  defendant,  who  had  paid  one  entire 
rent  to  the  common  clerk  of  the  trustees,  to  shew  that  the  trustees 
were  appointed  at  different  times,  as  evidence  that  they  were  tenants 
in  common  :  for  as  against  their  tenant,  his  payment  of  the  entire  rent 
to  the  common  agent  of  all,  is  at  all  events  suflicient  to  support  the 
joint  demise,  w  ithout  makijig  it  necessary  for  them  to  shew  their  title 
more  precisely  (a). 

Where  the  lessor  of  the  plaintiff  claims  by  lease,  under  a  copyholder, 
he  must  shew  that  Ijy  the  custom  of  the  manor,  [or  by  licence  of 
the  lord,  com.  scmb.]  the  copyholder  may  let  such  leases  for  years; 
for  if  this  be  not  set  out  in  the  declaration,  and  the  count  be  general, 
it  shall  be  esteemed  a  lease  at  common  law,  \\hich  a  copyholder  cannot 
make  (<-.). 

A  lease  by  a  copyholder  for  three  years  under  a  licence  to  let  foi 
twenty-one  years  is  good  ;  and  the  lessee  may  bring  ejectment  on  it  at 
the  common  law  (/). 

Indeed,  a  copyholder  may  declare  on  a  lease  for  any  number  of  years, 
x\  ithout  forfeiture;  and  the  lessee  of  a  copyhohler,  for  a  year,  may 
.i?tain  an  ejectment :  for  his  estate  is  warranted  l)y  law,  and  it  is  the 
lost  speedy  way  for  him  to  recover  the  possession  (g). 

Of  amcmling  the  Declaration. 

It  i<:  a  rule  both  in  the  Court  of  King's  Bench  and  that  of  the  t  oni 
mon  Pleas,  that  no  declaration  in  ejectment  can  be  amended  before 

(a)  3  Camp.  190  (b)  3  Taunt.  H.  120.  (t)  >i.'  V^ml'i  R.  i'- 

[d)  la  Eaft's  R  asi.  {I)  Cro.  Elii.  4GJ.  k/)  IbiJ  S35, 

is)  Bud.  Eject.  216. 


378  When  Ejectment  lieSj  and  the      [Chap.  XIV. 

appearance,  and  that  after  appearance  it  can  only  be  amended  in  form, 
not  in  matter  of  substance  (ct). 

But  amendments  arc  now  carried  further  than  formerly,  and  that 
which  used  to  be  deemed  substance,  (as  the  demise,  <^c.)  is  now  held 
matter  of  form,  and  amendable  (b). 

Thus,  where  the  ejectment  was  to  avoid  a  fine,  and  the  demise  was 
laid  before  the  plaintiif  had  made  the  entry,  instead  of  after,  it  was,  on 
motion,  ordered  to  be  amended  ;  Lord  Mansfield  observing  that  demise 
is  mere  matter  of  form  ;  it  did  not  exist  (c). 

So,  if  the  term  demised  to  the  plaintiff  is  expired,  or  likely  to  ex- 
pire before  trial,  the  Court  will  now  upon  motion  to  amend,  enlarge 
it  upon  payment  of  costs.  So,  the  term  was  ordered  to  be  enlarged, 
after  it  had  expired  twelve  years ;  though  the  cause  was  at  issue, 
and  special  jury  struck,  and  the  parties  gone  down  to  trial,  before  the 
mistake  was  discovered.  For  an  ejectment  is  the  creature  of  the 
Court,  and  open  to  every  equitable  regulation  for  expediting  the  true 
justice  of  the  case  (d). 

But  if  the  fault  go  to  the  title,  or  is  in  the  process,  it  is  not  amend- 
able (c). 

As  where  in  the  declaration  delivered  to  the  tenant  in  possession, 
the  said  "  James'^  instead  of  "  John^''  was  said  to  enter  by  virtue 
of  the  demise,  the  Court  refused  to  amend  it,  for  they  considered  it 
as  process :  and  Justice  Wright  cited  a  case,  where  the  premises 
were  laid  to  lie,  "  Tfvickenham  or  Islesrvorth,  or  one  of  them,"  and 
the  Court  refused  to  let  the  plaintiff  amend,  by  striking  out  the  dis. 
junctive  words. 

Yet  in  a  latter  case,  an  amendment  has  been  made  in  the  parcels  and 
in  the  name  of  the  plaintiif  for  the  defendant  (/ ). 

Of  service  of  the  Declaration,  Affidavits  thereof y  SCc. 

The  declaration  being  considered  as  process  to  bring  in  the  tenants 
must  therefore  be  personally  served  upon  him,  if  it  be  known  where 
he  lives,  and  his  residence  be  not  on  the  premises  for  which  the  eject- 
ment is  brought  [g).  For  service  on  the  person  jn  possession  will  not 
suffice,  if  it  do  not  appear  that  he  is  tenant  ^h). 

But  where  there  are  more  tenants  in  possession  than  one,  service 
on  the  wife  of  one  of  them  will  not  be  good  service  upon  9.II. 
Thus,  Mhere  upon  cause  being  shewn  against  a  rule  to  set  aside  pro- 
ceedings, on  the  ground  that  /.  G.  had  not  been  eerved  with  a  dccla- 
tion,  an  affidavit  was  produced,  shewing  that  a  declaration  had  been 

(a)  2  Sell.  Pract.  223.  (b)  Ibid.  ('«)  4  Bur.  2147, 

(d)  2  HL  n.  940.  Cowp,  841.  (e)  2  Str.  1311.  (f)  2  Sell.  Pact.  2»3. 

't)  2  Str.  106».  (A)  1  Tidd's  Pract.  445. 


Sect.  I.]       Proceedings  therein  at  Common  Lau.  379 

served  on  tlie  premises  on  Elizabeth  the  wife  of  //.  6'.,  and  it  was  cun- 
tendeil  lliat  siicli  service  was  siillitient,  though  botli  J.  and  //.  (i.  were 
tenants  in  possession  ;  particularly  as  it  aj)pearcd  that  J.  (/.  was  in  the 
house  at  the  time:  the  ("ourt  said,  that  tlie  service  was  certainly  good 
against  II.  but  that  it  wa?  defective  against  /.  as  those  steps  had  not 
been  taken  which  were  necessary  to  supply  a  personal  service  on  J.  and 
that  the  judgment,  therefore,  as  far  as  it  alfected  J.  nuist  be  set  aside. 
Thc  counsel  against  the  rule  then  saiil,  the  plaintills  must  continue  in 
possession  of  one  moiety,  and  recover  against  //.  G.  ijnodfuit  concrssum 
by  the  Court ;  the  counsel  on  the  opposite  side  observing  that  the  other 
defeiulaiit  /.  must  be  restored  to  the  possession  of  the  moiety  taken 
from  him  (a). 

A  motion  was  made,  that  service  on  ./.  might  be  deemed  good  ser- 
vice of  the  declaration  on  the  tenant  under  these  circumstances.  'Ihe 
premises  consisted  of  a  mansion  and  four  small  houses  in  a  yard,  sur- 
rounded by  a  wall,  tlirough  which  was  a  door  to  them,  forming  the 
only  means  of  access ;  in  one  of  which  small  houses  resided  A.  who 
■was  permitted  to  live  there  merely  to  take  care  of  them  and  of  the 
mansion  house  ;  the  rest  of  the  messuages  were  vacant.  The  Court 
refused  the  present  motion,  and  recommended  the  plaintifl'  to  affix  a 
declaration  on  the  empty  houses,  and  then  to  move  that  it  be  deemed 
good  service  {b). 

Service  of  a  declaration  in  ejectment  by  nailing  it  on  the  barn  door  of 
the  premises,  in  which  barn  the  tenant  had  occasionally  slept,  there  be- 
ing no  dwelling-house,  and  the  tenant  not  being  to  be  found  at  his  last 
place  of  abode,  was  allow  ed  to  be  good  service  (r). 

If  the  tenant  himself  cannot  be  found,  service  on  his  w  ifc  or  cliild, 
or  on  his  servant,  on  the  premises,  will  be  held  good  services.  If,  liow- 
ever,  it  be  on  the  servant,  some  ackncwledgmcnt  by  the  tenant  or  his- 
w  ife  should  be  made  to  render  it  sulhcient ;  and  tliat  though  it  may  not 
clearly  appear  that  the  declaration  came  to  liand  before  the  essoign  day 
of  the  term  (</). — But  perhaps  delivery  to  a  servant  at  the  tenant's 
dwelling  house,  and  explaining  the  meaning  of  it,  would  be  now  strong 
presumptive  evidence  for  tlie  jury  to  conclude  that  it  reached  the  te- 
nant ('■). 

Service  of  a  copy  of  the  declaration.  Sec.  in  ejectment,  before  the  es- 
soign day  of  the  term,  on  the  daughter  of  the  tenant  in  possession,  in 
the  absence  of  him  and  his  w  ife,  is  not  sullicient  ;  even  though  the  te- 
nant had  since  declared  that  he  bad  received  the  same,  if  it  did  not  np- 
pear  that  he  had  received  it  before  the  essoign  day  {J  ). 

The  Court  held  service  of  the  declaration  in  ejectment  on  the  w  ife  of 

(a)  Doe  I.  J.  C.   H.  Godlin.  F-.\i     T.  4a  G.  3.  K    U.  T.'«  MSS. 

(6)  Accor    1  TiJd'i  Pract.  443.  (rl   1  Una.  t  VM.  IT    P..  29J. 

(d)  2  Bl    K    WO.  hrik.  :5».  K.ra.  F>rf   J5i;  (,)  4  r   U  4S4.  (f\  It  i^.^■.^•i  R.  <«;. 


380  JVhen  Ejcdment  lieSy  and  the       [Chap.  XIV. 

tlie  tenant  in  possession  sufficient,  provided  it  could  be  shew  n,  that  the 
■wife  lived  with  her  husband  (r<). 

If  the  tenant  abscond,  it  is  usual  to  serve  the  declaration  on  some 
person  residing  at  his  house  ;  and  if  that  cannot  be  done,  to  affix  the 
same  upon  the  door  ;  and  then,  on  an  a^idavit  of  the  circumstances,  to 
move  the  Court  for  a  rule  upon  the  tenant  to  shew  cause  why  such  ser- 
vice should  not  be  deemed  good  service,  upon  which  the  Court  will 
prescribe  the  mode  of  serving  the  rule,  which  is  generally  made  abso- 
lute upon  affidavit  of  its  service. 

Thus,  in  such  case,  upon  service  on  the  tenant's  niece,  who  was  the 
only  manager  of  his  house  and  resident  in  it,  and  fixing  up  another  copy 
on  the  premises,  the  Court  made  a  rule  to  shew  cause  why  judgment 
should  not  be  entered  up  against  the  casual  ejector ;  and  further  or- 
dered, that  notice  of  such  rule  to  any  person  in  the  house  should  be 
sufficient,  and  that  if  no  person  were  in  the  house,  it  should  then  be  af- 
fixed to  the  door  of  the  house  (/>). 

So,  where  the  tenant  in  possession  was  personated  at  the  time  of  the 
service  by  another  who  accepted  the  service  in  her  name,  the  Court 
made  a  rule  to  shew  cause,  why  this  should  not  be  deemed  good  ser- 
vice upon  the  tenant  herself,  and  why  judgment  should  not  be  signed 
against  the  casual  ejector,  on  default  of  her  appearing  :  and  that  leav- 
ing a  copy  of  this  rule  at  her  house  with  some  person  there,  or,  if  no 
©ne  was  to  be  met  with,  affixing  it  on  the  door,  should  be  good  service 
of  it.  This  rule  was  made  absolute  upon  an  affidavit  "  that  the  te- 
nant was  either  not  at  home,  or,  if  at  home,  w  as  denied  ;  and  that  her 
servant  maid  was  at  home,  but  could  not  be  served  ;  av hereupon  a  copy 
of  the  nde  was  affixed  on  the  door  of  the  house  :  and  moreover  "  that 
at  a  subsequent  day,"  upon  a  doubt  whether  what  had  l>een  already 
done  was  sufficient,  "  the  maid  being  at  home  and  opening  the  win- 
dow, l)ut  refusing  to  open  the  door,  and  denying  that  her  mistress 
was  at  home,  another  copy  was  affixed  to  the  door,  and  the  maid  was 
told  the  effect  of  it ;  and  another  copy  was  thrown  in  at  the  window, 
and  the  original  rule  was  shewn  to  the  maid  (c). 

Such  rules  will  be  granted  with  a  retrospect :  for  a  like  rule  to  shew 
cause  why  a  preceding  service  of  an  ejectment  upon  a  servant,in  the  house 
of  one  Ilankins,  tenant  in  possession,  should  not  be  deemed  good  ser- 
vice of  it,  was  made  on  the  second  day  of  the  term,  on  its  appearing 
that  Jlcnvkins  and  his  wife  both  kept  out  of  the  way  to  prevent  their 
being  personally  served.  The  rule  was  made  with  a  retrospect,  in  or- 
der that  the  plaintiff  might  not  lose  the  assizes  (d). 

So,  in  another  case,  a  rule  was  granted  and  afterwards  made  abso- 
lute, that  service  of  a  declaration  in  ejectment  at  the  house  of  a  tenant 

(a)  1  Boj.  faPull.  \.  R.  303.  (i)  Bar.  192.  2  Bur.  1118.  (c)  Ibi*.  1183. 

(<f ;  IbiJ.  ill  Mars.  1  Bl.  R.  290.  s.  c. 


Sect.  I.]        Proceedings  l/nrciii  at  Common  Law.  ?A)\ 

in  possession,  on  a  ilay  past,  might  be  good  service  ;  and  tliat  service  of 
the  (irst  rule  at  the  house  of  llic  s.iid  tenant,  slioiiM  be  ijood  service  (rj). 
Uut  where  cause  beingshcuii  against  a  rule  fcjr  good  service  of  t!>c 
tlcclaration  in  ejectment,  it  appcare*!  that  tiie  declaration  was  ten(!ere»l 
on  the  Ibth,  but  that  the  defcndiint's  servant  said  that  he  had  orders 
not  to  receive  any  such  things  whereupon  it  was  not  tcrved  on  tliat  day, 
but  was  left  at  the  house  on  the  day  following  ;  notwithstanding  tint 
liiC  defendant  knew  of  the  intention  to  serve  him,  the  Court  said,"  Vou 
should  have  left  the  declaration  on  the  ISlh.  We  sunielinies  by  rule 
make  that  service,  und«!r  particular  circumstances,  j^ood,  wliich  oti)er- 
\\i:.e  w.)iild  have  Ixen  imperfect;  but  here  there  was  no  service  on 
tlic  projxT  day  ;  ami  we  cannot  antedate  the  service."  Rule  dis- 
charged (/;). 

Leaving  the  cjectmenl  at  the  house,  was  ruled  to  bcsufilcient  service, 
it  appearing  that  the  servant  had  refused  to  receive  it,  having  been 
ordererl  by  hisnnster  not  to  take  ii:  any  papers  (c). — Hut  where  it  ap- 
]>v:ared  that  service  was  made  upon  the  defendant's  son,  wlio  accepted 
it,  and  said  that  he  knew  what  it  was  for,  and  would  deliver  it  over  to 
hisfatlier;  and  both  fatlier  and  son  were  attornies ;  the  Court  not- 
withstanding licld  the  service  insuliicient  and  saiil,  it  had  been  oflc^n 
ruled  so  (r/). 

Hut  tender  of  the  declaration,  and  reading  the  notice  aloud,  tligugh 
the  tenant  refused  to  receive  it ;  or  runs  aw  ay  and  shuts  the  door  ;  or 
threatens  with  a  gun  to  shoot  tlie  person  serving  it  if  he  came  near, 
have  been  held  good  service  upon  application  to  the  Court,  w  ho  acts 
discrctionally  in  this  niattcr,  according  to  the  cxiLiency  of  tlie  cise  (^  ). 
A  declaration  served  on  tlie  churchwardens  and  overseers  of  a  parish, 
who  rented  a  house  for  harbouring  some  of  the  parish  poor,  and  did 
not  otherwise  occupy  the  Iiouse  llian  by  placing;  the  poor  in  it,  was 
deemed  sufficient  service,  and  a  rule  made  for  .)ad.':;mcnt  (/"). 

So,  in  ejectment  for  a  chapel,  if  service  of  the  declaration  be  made 
on  the  chapel  wardens,  or  on  the  person  entrusted  with  tlic  keys  of  th;j 
rhapcl,  it  will  be  sufficient.  , 

On  affidavit  that  one  of  (he  tenants  is  a  lunatic,  an  ^  that  one  C. 
lives  with  her,  transacts  her  business,  and  has  the  sole  conduct  thereof, 
and  of  her  person,  but  woidd  not  permit  liie  deponent  to  have  acctss 
to  her,  in  order  to  serve  her  with  the  tleclaration  :  wlrre.pon  he  deli- 
vered it  to  the  said  C.  a  rule  was  made  for  the  lunatic  an<l  ( '.  both  to 
shew  cause,  why  .such  service  should  not  be  ^;ood  ;  and  sicrvioc  of  the 
nde  on  the  f»aid  C.  be  goo<l  (f ). 

Jf  there  be  several  tenants  in  possess i An.  the  plnintill',  it  has  been 

fa;  1  Ri  H.niT  ih)  T.*9  MfcS.  H.  T    »i  c>.-' 

(d)  T.S  .ALSS.  T.  T.  al  O  3.  (t!  StJl.  Pracl.  V.?.  \^A   ;  .i  B*ro«.  181. 

'y;  S«ll.  fr«cl  174. /i»r.  ls»o.  • 

oC> 


332  JVheu  Ejccirtifnt  lies,  and  the       [Chap.  XIV. 

snid,  must  deliver  a  declaration  to  each  of  them  :  but  -where  the  name 
of  each  was  prefixed  to  the  notice  served  on  him,  it  was  held  that  one 
rule  only  was  ntcessary  on  motion  for  judgment  against  the  casual  ejec- 
tor {n).  lIouever,in  a  litter  case,  it  seems  that  service  of  one  of  two 
tenants  in  possession  has  been  good  service  on  both  (^^). 

Jfidavlt  of  Service. — The  declai'ation  having  been  delivered,  the 
person  who  delivered  it  must  make  adidivit  (except  in  the  case  of  va- 
cant possession)  that  he  delivered  to  the  tenant  or  his  wife,  S:c.  a  true 
copy  of  the  declaration,  and  read  or  explained  to  him  the  notice  an- 
nexed thereto.  If  a  declaration  was  served  on  the  child  or  servant  of 
the  tenant,  the  affidavit  must  state  further,  '•  that  the  service  -was  af- 
terwards acknowledged  by  the  tenant." — The  affidavit  must  be  posi- 
tive, namely,  that  A.  B.  was  tenant  in  possession,  or  that  he  acl;now- 
ledged  himself  to  be  so  :  because  no  one  should  be  evicted  from  posses- 
sion without  a  possitive  affidavit,  on  which,  if  it  be  false,  the  person 
•who  made  it  may  be  legally  and  ef:ectual!y  subjected  to  the  penalties 
of  perjury  [c). 

Affidavit  of  service  en  A.  B.  tenant  in  possession,  or  C.  his  wife,  is 
not  sufficiently  certain  as  to  either  {d). 

So,  service  on  the  wives  oiA.  and  B,  who,  or  one  of  them  are  te- 
nants, was  held  not  good  (e). 

The  reason  why  it  is  necessary  to  state  in  the  affidavit  that  the  ser- 
vice was  on  the  wife  at  the  husband's  house,  is  to  shew  that  they  ■\\ere 
living  together  as  man  and  wife  ;  and  that  by  such  service,  the  husband 
may  have  notice  of  the  proceedings :  but  the  declaration  may  be  serv- 
ed on  the  wife  either  on  the  premises  or  at  the  husband's  house  (/). 

M'hen  several  tenants  have  been  served  with  copies  of  the  declara- 
tion, if  it  is  meant  but  as  one  ejectment  and  to  be  followed  by  one 
judgment,  one  affidavit  of  the  service  of  all  is  sufficient,  annexed  to 
the  copy  of  one  declaration.  But  if  the  ejectments  are  made  several, 
so  as  to  have  separate  judgments,  writs  of  possession,  Src.  then  an  af- 
fidavit must  be  annexed  to  separate  copies  of  the  ejectment  of  the  ser- 
vice separately  {g). 

Moving  for  Jmlgment. — Upon  the  affidavit  of  service  (\^liich  affida- 
vit, be  made  by  the  party  who  served  the  declaration,  or  by  any  one 
who  was  present  and  saw  it  served)  ;  the  plaintiff  moves  for  judgment 
against  the  casual  ejector,  which  is  alw  ays  granted,  unless  the  tenant  in 
due  time,  enter  into  the  common  rule  to  confess  lease,  entry,  and 
ouster  {K).  This  motion  for  judgment  is  a  side  bar,  but  where  there  is 
any  thing  in  the  service  of  the  declaration  out  of  the  common  vay, 
it  should  be  mentioned  to  the  Court,  and  where  the  afiidavit  of  service 

'"■  HuM.  >.-  p.  98.  (5)  I  Em.  b  PaU.  359.  (c)  7T.  R.  477.   I  I  il    Pr.  Reg.  199 

Bun.  Eject  158.  (d)  Bar.  i73.  («)  IbJd.  17i.  (/;  I  Tid<l'«.Prart-  41^- 

'St  B  a^U.  PrMt  173.  »  Bos.  fc.  Pull.  I2a 


Secu  I.J         Procudiii^i  liurcin  at  Common  I^n.  3^ 

ii  deibctive,  the  Court  of  King's  Bctxh  will  give  Leave  to  file  a 
Siipplemcntai  affidavit  (a). 

Although  judgment  against  the  casoal  ejecti>r  be  a^ned,  jet  if  do 
possession  is  given,  or  trial  lost,  it  aujr,  oo  ao  a&dav  it  of  Bierits  aad 
payioent  of  costs,  Ije  ict  aside  (6). 

In  the  King's  Bench,  if  the  premises  are  sitaate  io  L/mdon  or  ^fl^ 
41fK.v,  and  the  ootke  reqoircs  the  tenant  to  a(#pear  oo  the  first  day.  or 
within  the  fir?t  Umxt  days  of  the  neit  term.  -  r  ;- 

lariy  more  £or  judgment  against  the cosiiai  i^^..y.  ..    ... 

that  term  :  and  then  the  teriant  roust  appear  »ithia  four 
after  the  motion,  or  the  plaintidf  «iD  be  esititied  to  judgmect.  li  bov- 
evcr  the  motion  be  deferred  till  the  latter  end  of  the  term,  the  Court 
will  order  the  tenant  lo  appear  in  two  or  three  days,  and  sofiietimes  im* 
ntediately,  that  the  plainti^  may  proceed  lo  trial  at  the  ailing  after 
term  ;  thoogh  if  the  motion  be  not  made  before  the  Ust  km-  '  -  ' 
the  term,  the  tenant  need  not  appear  until  two  days  Ijefiore  tL.  -  ,  . 
day  of  the  S4if>sequeDt  term :  and  should  the  notice  in  such  case  reqaire 
the  tenant  to  appear  in  the  next  term  generaUj,  the  tenant  has  the 
whole  of  that  term  to  appear  in  (r). 

In  the  CoramoQ  Picas,  if  the  premises  are  sitoaie  in  Lmiam  or  iSi- 
dlrsr.r,  and  the  tenant  has  notice  to  appear  in  the  bc^iqnin;  of  the  term, 
the  ,  ~  :annot  ta^e  any  thir;g  by  his  motion  for  judgmed  against 

the  .---.  ., actor  for  default  of  appearanre,  ohLlss  such  motioii  be 
made  within  one  week  next  after  the  first  day  of  ererj  Jiickaeijmas 
and  KaOer  terms,  and  wkhin  four  days  tt:xt  after  the  first  day  of  ererj 
Hilarj  and  Truuttf  tenns.— But  it  ^  '-  -  h  '  -  -hat  this  rule  does 
Dot  extend  to  the  case  of  a  vacant  j-  .  .-^t  sta*.  i  G.  2(i)- 

la  country  t^mses^  though  the  deciaraiion  be  dciirezed  beiLir.--  tiie  ts- 
f<>ijn  diy  o[  Easier  oc  MukMelatas  term,  yet  the  tenant,  in  both  Coorts, 
is  aJiored  ti21  four  days  afterthe  next  issuable  (that  is,  BiLtry  or  7  riai- 
'  v)  terra  to  appear ;  and  if  the  cause  arise  in  Ctusihrrlamd,  or  any  othsr 
''ouoty  where  the  assizes  are  held  but  atjct  a  ye:  ant  need  oot 

appear  till  foor  days  ifter  the  term  pr««lins  t^c  -^^^  ...   — Btt  in  the 
Kind's  Bench  the  plaintia  mast  move  for  judgaeot  the  ssrae  tcna  in 
which  the  tenai^  has  notice  to  appear :  though  the  practice  is  dxStsrrA 
"    muMB  Pleas,  lor  tltere  he  may  more ^or  judgment  at  any  time 
.  ue  next  issoabie  term  (e). 

Ky  a  late  mit,  of  the  Court  of  King's  Bench,  the  clert  of  the  mles 
.^  la  keep  a  book,  iq  «hich  is  lo  lie  entered  ail  the  rxiki  «k«L'h  s^ail  be 
•kLvered  oat  in  ejecLtbents,  ioEtead  of  that  Lxwaniy  kept  which  cou- 
xa.uKd  a  lia  of  the  cjtctmenla  movxd.    Tlic  csirv  i^  to  ^sclfy  the  mus- 


384  Who  may  ikfend  [Chap.  XIV 

ber  of  the  entry  ;  the  county  in  which  the  premises  lie  ;  the  name  of 
the  nominal  plaintiff;  the  iirst  lessor  of  the  plaintiff,  (with  the  words 
"  and  otiicrs,"  if  more  than  one),  and  also  the  name  of  the  casual 
ejector  :  and  unless  the  rule  for  judgment  be  drawn  up  and  taken  away 
from  the  oifice  of  such  clerk  within  two  days  after  the  end  of  the  term 
iii  which  the  ejectment  shall  be  moved,  no  rule  is  to  be  drawn  up  or 
entered,  nor  any  proceedings  had  in  such  ejectment. 

By  stat.  1 1  G.  2.  c.  19.  the  tenant  must  give  notice  to  his  landlord  of 
any  declaration  in  ejectment  being  delivered,  under  pain  of  forfeiting 
tiu-ee  years  improved  or  rack-rent  of  the  premises  so  had  and  enjoyed 
by  the  tenant. 

A  tenant  to  a  mortgagor  who  does  not  give  him  notice  of  an  eject- 
ment brought  by  the  mortgagee,  to  enforce  an  attornment,  is  not  liable 
to  the  penalties  of  this  statute  :  for  the  act  expressly  permits  an  eject- 
ment to  be  brought  for  such  purpose  ;  and  extends  only  to  casts  where 
ejectments  are  brought  which  are  inconsistent  with  the  landlord's 
title  («). 

But  where  the  tenant  had  not  gi,ven  notice  to  his  landlord  of  the  eject- 
ment, and  there  was  judgment  against  the  casual  ejector,  the  Court  set 
aside  the  judgment  and  ordered  the  tenant  to  pay  all  the  costs  to  the 
lessor  of  the  plaintiff  on  the  landlord's  entering  into  the  usual  rule  to 
try  the  title  {L).  Or  the  landlord  may  bring  a  writ  of  error,  which 
operates  as  a  svpcrsccl  as  of  the  proceedings  under  the  statute,  and 
thereby  stay  execution  (r). 


Section  II.     Who  may  defend  the  Action  of  Ejectment,  SCc. 

The  Tcnant.-^The  tenant  in  possession  must  apply  to  the  Court  to  be 
made  defendant  in  the  room  of  the  casual  ejector.  This  is  done  onxon- 
dition  that  he  confesses  lease,  entry,  and  ouster. 

By  the  connnon  law,  no  person  is  permitted  to  defend  in  ejectment, 
unless  he  be  tenant,  and  is  or  hath  been  in  possession,  or  receipt  of  the 
rent :  for  besides  that  it  ^vas  champerty  for  any  person  to  interpose  and 
cover  the  possession  with  his  title  if  the  party  would  make  any  person 
defendant  with  another,  who  was  not  concerned  in  the  possession  of  the 
tenements,  it  was  a  miscliief  at  the  common  \a,\v,  because  if  the  plain- 
tiff recover  against  one  of  the  defendants,  the  stranger  had  no  remedy 
for  his  costs ;  but  this  is  remedied  by  8  and  9  Jl'.  3.  r.  10.  wherel)y  costs 
are  given  to  such  strangers,  unless  the  Judge  certifies,  immediately  on 
the  trial,  that  the  party  had  probable  cause  for  making  him  defendant. 

Moreover,  as  the  tenant  in  possession  could  not  he  compelled  to  ap- 
pear and  enter  into  the  common  rule  to  become  defendant  instead  of  the 

(n)  1  T.  R.  407.  (l;  4  Bur.  1996.  (c)  2  Sir.  1211. 


Sect  II.]  the  Acl'wn  of  Ejcclment ;  SCc,  30.') 

casual  ejector ;  so  neither  could  tlie  landlord  alone,  without  joininj; 
■\vilh  the  tenant,  f  ntrr  into  such  rule,  ami  ho  made  sole  defi-nd.int. 

The  Landlord. — To  remedy  this  iMconvcMieiicc,  hy  stat.  1 1  G.  2.  c.  I'J. 
s.  13.  it  is  enacted,  That  it  may  he  lawful  for  the  Court,  where  such 
ejcclment  shall  \)c  hroui;ht,  to  stiller  the  Inndloitl  to  make  himself  de- 
fendant, hy  joining  with  the  tenant,  in  ca»c  he  should  appear  ;  but  in 
case  such  tenant  shall  neglect  or  refuse  to  appear,  judi;ment  sliall  l»c 
signed  aji^ainst  the  casual  ejector,  ff>r  want  of  such  appearance:  hut  if 
the  landlord,  <S'-< .  of  any  part  of  tiie  lands,  ^V.  for  uhich  such  eject- 
ment was  brought,  shall  desire  to  appear  by  himself,  and  consent  to 
cntrr  into  the  like  rule,  that  by  the  course  of  the  Court,  the  tenant  iji 
j)osscssion  incase  he  or  she  had  ajipearrd,  oiif;lit  fo  have  done  ;  then  the 
Court,  where  such  ejectment  sliall  l»e  broui;ht,  shall  and  may  pirmit 
such  landlord  so  to  do  ;  and  order  a  stay  of  execution  upon  such 
judgment  against  the  casual  ejector,  until  they  shall  make  further  order 
therein. 

The  landlord's  right  to  be  joined  in  defending  the  premises  is  alTn'mcd 
by  this  statute,  for  he  had  such  right  before  :  and  it  is  optional  in  him 
to  be  made  defendant  or  not,  for  the  Court  cannot  couiptil  him  (n).  ■  ^ 
The  Conrt,  however,  has  no  jurisdiction,  it  seems,  to  iidmit  a^y 
person  to  defend  instead  of  the  tenant,  but  the  landlord.      In  llie  con- 
struction, however,  of  the  statute,  the  word  "  landlord"  is  c.\len<led 
to  all  claiming  title  consistent  with  the  posses^sion  of  the  occupier,  for 
it  need  not  be  the  actual  landlord,  but  it  is  sulHcitent  if  he  have  an 
interest  only  in  the  land.     A  purchaser,  therefore,    of   a  reversion, 
which  appeared  to  be  a  pretendhd  title,  and  where  no  rent  had  ever 
been  paid,  was  held  to  i)e  admissildc  as  a  (bTendarrl.     So,  it  should 
seem,  a  mortgagee  out  of  possession  may  now  be  ad  milled  to  defend, 
on  the  tenant's  refusal.    Hut  a  devisee  (cestui  que  trust  J  out  of  posses- 
sion is  not  deemed  a  landlord  within  the  meaning  of  the  act:  for  upon 
a  motion  to  permit  certain  devisees  to  defend  instead  of  the  tenant,  it 
was  opposed  on  the  ground  that  the  devisees  had  never  been  in  posses- 
sion, and  could  not,  therefore,  be  considered  hs  landlords  under  11  G. 
2.  c.   10.  6".   !.'>.  and  Lord  Kcrn/on  said.  If  the  pei'^on  requiring  to  be 
made  defendant  under  the  act,  had  stood  in  the  situation  of  immediate 
heir  to  the  person  last  seised,  or  had  been  in  the  relation  of  remainder- 
man under  the  same  title  as  the  original  landlord,  I  am  of  opinion  that 
he  might  have  been  permitted  to  defend  as  a  landlord  by  virtue  of  the 
directions  of  the  statute  ;  but  here,  the  very  rpu'stion  in  dispute,  be- 
tween the  adverse  party  and  himself,  is,  ^Vhelher  he  is  entitled  to  be 
landlord  or  not :  we,  tiurelorr,  are  not  authorized  to  extend  the  provi- 
sion of  the  statute  to  such  a  case  as  this  {h).     Afi  to  the  case  mentioned, 
.it  appears  to  have  been  by  consent. — A  devisee  in  trust,  however,  may 

(•)  Salli.  :;•.:  ;0  3  T.  R.  7;3. 


38G  mo  may  defend  [Chap.  XIY. 

defend  a-;  Iindlord.     So,  h'■^  heir  who  had  never  been  in  possession.  So, 
the  heir  rit  Jaw  or  reniaiiider-man  under  the  same  title  <a). 

So,  if  an  ejectment  be  brought  l)y  one  claiming  as  heir  of  a  copy- 
hold, and  the  lord  of  a  manor,  av ho  claims  by  t?,c\\t?iX pro  dcfectu  hare- 
dis,  applies  to  he  admitted  defendant  cither  with  the  tenant  or  alone, 
the  Court  will  direct  the  lord  to  bring  this  action  against  the  heir,  and 
the  heir  will  be  admitted  to  defend.  If  the  lord  refuses,  they  will  dis- 
charge his  rule  to  be  admitted  ;  if  the  heir  refuses,  they  will  admit  the 
lord  to  defend  (h). 

On  the  landlord  being  made  a  defendant  under  11  G.  2.  c.  19.  on 
non-appearance  of  the  tenant,  the  Court  will  stay  execution  against  the 
casual  ejector. 

But  where  the  landlord  is  permitted  to  defend  without  the  tenant,, 
judgment  is  always  first  signed  against  the  casual  ejector  ;  the  reason  of 
which  is  that,  under  it,  the  plaintiff  if  he  obtain  a  verdict,  may  get 
possession  of  the  premises  sued  for,  which  he  could  not  do  by  virtue  of 
a  judgment  against  a  person  out  of  possession  (r). 

As  to  the  time  when  the  landlord  may  be  admitted  defendant,  a  case 
occurred,  in  which  judgment  had  been  regularly  obtained  against  the 
s^sual  ejector  by  default : — the  landlord  of  the  premises  moved  to  set 
it  aside,  because  his  tenant  had  not  given  him  any  notice  of  his  having 
been  served  M-ith  the  declaration  in  ejectment.  The  plaintiff  insisted 
that  his  judgment  was  perfectly  regular ;  arul  that  the  tenant's  omitting 
to  give  his  landlord  notice  of  the  declaration  being  delivered  was 
merely  a  matter  between  the  landlord  and  his  tenant,  which  could  not 
affect  the  plaintiff's  regular  judgment,  which  had  been  fairly  and  duly 
obtained.  The  Court,  however,  Mere  clearly  of  opinion  that  the 
possession  ought  not  to  be  changed  by  a  judgment  in  ejectment  where 
there  had  been  no  trial  or  opportunity  of  trying  ;  for  the  oiitaining 
judgment  might  be  owing  to  the  default,  or  even  treachery  of  the  de- 
fendant's own  tenant.  But  if  the  plaintiff  had  not  been  guilty  of  any 
collusion  with  the  tenant,  they  thought  it  reasonable  that  the  tenant, 
who  was  the  person  guilty  of  the  default,  should  pay  the  costs  :  for  the 
rule  of  the  Court,  which  requires  service  upon  the  tenant  in  possession, 
is  calculated  with  a  view  that  the  tenant  should  give  notice  to  his  land- 
lord, in  order  that  the  ejectment  cause  miglit  be  tried  between  the 
proper  parties  interested  in  the  question  (d). 

If  judgment  be  signed,  it  is  too  late  for  the  landlord  to  be  made  de- 
fendant. But  the  landlord  may  be  let  in  after  judgment  when  signed. 
in  consequence  of  the  tenant's  not  giving  notice  {e). 

But  in  no  event  will  the  Court  endure  that  a  lessee  defend  aIo»c 

(«;  3Bur.  1310.    4T.  R.  132.  (b)  3  Bur.  1290.  (e)  3  Sell.  Pract  I8i. 

(«tX  4  Bur.  !93e.  (<.)  2  Sell.  Pract.  18?. 


Sect.  IT.]  the  Action  of  Ejectment  ;  S'c.  337 

against  his  landlord,  or  those  who  claim  under  him,  on  a  supposed  de- 
fect of  title  {a). 

J  third  Person. — In  all  t;u(s,  if  the  pcrion  who  wishes  to  defend  he 
neither  tenant  nor  artnal  landlord,  l)ut  luissonie  interest  to  sustain,  he 
must  move  the  Court,  on  an  afhdavitof  the  fact,  to  be  made  a  deferul- 
ant,  in.stca<l  of,  or  uitli,  the  casiial  ejector  ;  and  the  tenant's  consent  is 
not  now  necessary  (A). 

If  a  luiterial  witness  for  tlie  defendant  he  also  made  a  defendant, 
the  rigid  way  i?  for  him  to  let  jndgnieiit  go  by  default  ;  hut  if  he 
plead  and  by  that  means  admit  himself  to  be  ten  int  in  possession,  the 
Court  w*  I  not  afterwards  upon  motion  strike  out  his  name.  In  such 
case«,  however,  if  lie  consent  to  let  a  verdict  be  given  against  him  for 
as  much  as  he  is  proved  to  be  in  possession  of,  no  reason  appears  why 
he  should  not  be  a  witness  for  another  defendant  fc^. 

Consolidntion  Rulf. — Where  there  are  several  defendants,  to  u  hom 
the  j)laintili' delivers  declarations,  \sho  are  severally  concerned  m  in- 
terest, and  the  jjlaintilV  moves  to  join  them  all  in  one  declaration,  yet 
the  Court  will  not  do  it,  but  the  plairitiA'  must  deliver  several  declara- 
tions to  each  of  them  ;  because  each  defendant  nuist  have  a  remedy  f(;r 
his  costs,  which  he  could  not  have  if  they  were  joined  in  one  declara- 
tion, and  the  plaintiff  prevailed  only  against  one  of  them  ;  and  by  this 
means  the  plaintijf  might  have  a  tenant  of  his  own  defendant  with 
others,  in  order  to  save  the  costs  (^d). 

But  where  several  ejectments  are  broiiglit  fi.r  the  same  premies, 
upon  the  same  demise,  the  Court  on  motion,  or  a  Jad'j;e  at  his  chuui- 
bers,  will  order  theiu  to  be  consolidated  :  the  motion  is  for  rule  to  shew 
cause  (p). 

Jppearnvcc. — The  appearance,  therefore,  may  be  either  by  the  ten- 
ant hinipelf  (as  when  he  is  in  possession  of  his  own  estate,  or  agrees 
withliis  landlord  to  defend  the  action,  or  it  is  an  ejectment  by  the 
.  landlord  against  his  tenant  or  the  like),  or  it  may  be  by  the  tenant  and 
the  landlord  jointly,  or  if  the  tenant  refuses,  it  may  be  by  the  landlord 
alone. 

The  appearance  in  all  the  above  cases  is  effected  in  the  same  manner, 
except  only  that  in  the  two  last,  counsel's  signature  nuist  be  got  to  a 
motion,  which  is  of  course  to  admit  the  landlord  to  defend,  cither 
with  the  tenant,  or  by  himself  if  he  refuses  to  a[jp('ar,  and  a  rule  got 
from  the  clerk  of  the  rules  accordingly  (/).  Also,  if  the  ttnant  reHriC 
to  appear,  an  aflidavit  of  such  refusal  should  be  maile;  for  the  tenant 
is  not  oblitred  to  appear  in  ejectment  though  the  landlord  is  ready  to 
indenmify  him.    Nor  can  an  uttonuy,  by  order  of  the  |:'Jidiord,  appear 

(a;  B  HI    R    12^9.  (A^   IbW    l«4.  (<■>  Hull    >■    V    .  ',  il<m    Fiff   U- 

f;  Ihid  f/jL' t(«ll.  Pr»et    IT;> 


3^8  ^Vho  may  Befaid  [Chap.  XIY. 

for  the  tenant :  such  appearance  and  plea  ^voukl  be  irregular,  and  or- 
dered to  be  Avithdrawn  {a). 

The  appearance  in  this  action  should  be  entered  of  the  term  men- 
tioned in  the  notice;  and  Avhere  tiie  notice  to  appear  was  m  Hilar  i/^ 
and  the  tenant  entered  an  appearance  in  Michaelmas  following,  and 
did  nothing  farther,  and  the  plaintiff,  finding-  no  appearance  oillilarij, 
and  no  common  rule  entered  into  or  pleaded,  signed  judgment  against 
the  casual  ejector,  the  Court  held  it  regular ;  but  afterwards  set  it  aside 
to  try  the  merits  {b). 

Touching  the  common  or  consent  rule,  it  should  be  remembered  that 
judgment  against  the  casual  ejector  is  always  granted,  unless  the  tenant 
in  due  time  (that  is,  within  the  time  allowed  for  his  appearance) 
enters  into  the  common  rule  to  confess  lease,  entry,  and  ouster.  But 
if  tlie  tenant  or  his  landlord  wishes  to  defend  the  action,  he  must, 
V  ithin  that  time,  constitute  an  attorney,  who  will  make  out  the  com- 
mon rule,  and  leave  it,  with  the  general  issue,  at  a  Judge's  chamber? 
in  the  King's  Bench,  or  at  the  Prothonotary's  ofiice  in  the  Common 
Pleas.  This  rule  is  in  substraice  nearly  the  same  in  both  Courts  ;  and 
the  purport  of  it  is,  that  the  tenant  or  other  defendant  shall  immedi- 
ately appear,  receive  a  declaration,  plead  not  guilty  in  a  plea  of  tres- 
pass and  ejectment  for  the  tenements  in  question  ;  and  that  upon  trial 
of  the  issue,  he  shall  confess  lease,  entry,  and  ouster,  and  insist  upon 
the  title  only  :  the  effect  of  the  rule  l)eing  to  bring  the  matter  to  the 
mere  cjucstion  of  the  plaintiff's  possessory  title  (c). 

In  all  cases,  except  that  of  ejectment  brought  to  avoid  a  fine, 
(where  there  must  be  an  actual  entry,)  the  confession  of  lease,  entry, 
and  ouster,  is  sufficient  to  bar  a  nonsuit  for  want  of  proof  of  actual 
ouster.  It  is  sufficient  therefore  in  an  ejectment  brought  for  a  condi- 
tion broken  ;  or  by  one  tenant  in  common  against  another. 

The  common  rule,  being  made  by  assent  of  both  parties,  an  attach- 
jiient  lies  for  the  non-performance  of  it,  as  of  all  other  rules  of  Court 
that  are  disobeyed ;  and  this  is  all  the  remedy  w  hich  the  parties  on  both 
sides  have  for  their  costs  {d). 

If  there  be  several  persons  who  claim  title,  the  rule  may  be  drawn 
cither  generally  or  specially :  generally,  as  that  v^.  who  claims  title 
to  the  premises  in  question  in  his  possession,  be  admitted  defendant 
for  those  premises ;  which  puts  a  necessity  upon  the  plaintiff  to  dis- 
tinguish, by  proof  at  the  trial,  what  tenements  are  in  each  defendant's 
possession;  because  by  the  rule,  he  is  only  to  confess  for  the  premises 
in  his  own  possession  ;  and  if  the  plaintiff  cannot  distinguish,  by 
proof  what  tenements  are  in  each  defendant's  possession,  he  can  have 

(a)2  fell,  rraft.  187.  (6)  Ibid.  (c)  Run.  Eject.  190.  {d)  Ibid.  i02. 


'<((\.  IF.]  t/ic  Action  of  Kjcdmnil ,  cS'r.  389 

111)  vcriliit,  confOfnicnlly  no  ju(li;ni('nt.  Or  the  rule  may  ])C  drawn 
pccially  ;it  the  di^cn  f  ion  of  the  ilcfcndanf :  as  that  7.  avIio  claini<;  title 
to  such  and  such  prpuises,  (I'xprcsfinir  tlu-ni  particiihufy,)  he  admiltod 
defendant ;  which  supcrscd(^  the  necessity  of  proof  tliat  the  prentises 
arc  ir)  hi?  pof^'csbion.  If  the  truant  enters  into  the  cojninoTi  rule  for  so 
nnirli  of  the  premises  as  are  in  hin  possession,  Iiis  attorney  must,  l<y 
rule  of  ("uiirt,  innucdiately  tleliver  to  the  pliintiiT'satlorney  a  note  in 
urllini!;  thereof,  and  if  the  defendant's  attorney  uiii  not  give  a  note  of 
the  piirticulars  of  the  land  for  whicli  ho  was  atUniltcd  defendant,  the 
])luintiff  may  ^tinimon  him  before  a  Judge,  who  will  order  the  rule  tlius 
Fpcciully  to  be  drawn  up,  in  case  the  party  in  possession  will  hiniself 
1)C  defendant :  hut  l»ecausotlie  defendant's  attorney  is  to  draw  up  the 
rule,  it  being  entered  into  by  his  consent,  it  is  often  drawn  up  iti  gcnc- 
,al  terms,  which  puts  the  plaintiff  to  proof  at  the  trial  (rr). 

The  lessor  of  the  plaintiflis  bound  at  the  trial  to  prove  the  dctend- 
Rnt  in  possession  of  the  premises  which  he  seeks  to  recover,  notwith- 
Mamling  thai  the  defendant  has  entered  into  the  q;cncrar  consent  rule 
lo  confess  lease,  entry,  and  ouster,  if  the  defendant  contest  his  posses- 
ion (/>). 

But  now  the  practice  is  to  insert  in  the  nwrgin  of  the  consent  rule, 
the  ])rcmiscs  to  be  defended,  stating  that  they  arc  part  of  the  j)rcmiscs 
mentioned  in  the  declaration,  which  nial;es  the  rule  special,  and  there- 
by supersedes  the  necessity,  as  we  have  before  observed,  of  the  plaintilT 
l)roving  in  whose  possession  the  premises, arc  (r). 

\\lien  the  appearanccis  for  part,  the  plaintiff  may  sign  his  judgment 
agiainst  the  casual  ejector. 

That  the  lessor  of  tho  plaintiff,  however,  may  the  better  1;no\v  ^\hat 
exact  part  of  the  premises  arc  defended,  the  defendant's  attorney  should 
give  notice  to  the  plaint i if 's  attorney  what  the  premises  are. 

Trocccdhigs  ivhtn  s^nj/et/.— In  certain  cases,  the  Court  will  stay  the 
proceedings  in  ejectment,  on  a  motion  for  a  rule  to  shew  cause. 

Thus,  wherethe  lessor  of  the  plaintiff  is  unknown  t6  the  defendant, 
the  latter  may  call  for  an  account  of  his  rcsitfcncc  or  place  of  abode, 
from  the  opposite  attorney  ;  aVid  if  lie  refuse  to  give  it,  or  give  in  a  fic- 
titious account,  of  a.persoji  who  cannot  be  found,  tJie  Court  will  stay 
the  proceedings  until  Eccurity  be  given  for  the  payment  of  co5ts(i/). 

Also  an  ejectment  on  a  clause  of  re-entry  for  non-payjucnt  of  rent, 
under  the  stat.  4  G.  2.  c.  28.  (of  winch  hereafter),  proceedings  \\  ill  I»c 
stayed  at  any  time  aft'r  judgment  and  before  executl>.>n  executed,  oa 
the  tenant  bringing  into  Court  all  the  rent  in  arrcar  and  costs  (; ). 

Hut  the  Court  will  not  stay  proceedings  if  a  writ  of  possession  ha? 

'    Run.  Ejer'.  2r3.  ( '.;  7  T.  T^.  ._■  :  i.  ■ 

1  TIdd'j  l'r».-.  4:'-,   -  -j  lUil.  «7. 

51 


300  Wio  may  defend  [Chap.  XIV^ 

been  executed.    The  ai)i)lication  in  such  case  is  too  late,  no  action  pend- 
ing ;  it  cannot  be  granted  without  consent  (f<). 

In  ejectment  by  a  mortgagee,  for  the  recovery  of  the  possession  of 
the  mortgaged  premises,  or  in  debt  on  Ijond  conditioned  for  the  pay- 
ment of  the  mortgage-money,  or  performance  of  covenants  in  the 
jnortgage  where  no  suit  in  equity  is  depending  for  a  foreclosure  or  re- 
demption, by  stat.  7  G.  2.  c.  20.  if  the  person  having  a  right  to  redeem 
shall  at  any  time,  pending  the  action,  pay  to  the  mortgagee,  or  in  case 
of  his  refusal  bring  into  Court  all  the  principal  monies  and  interests 
due  on  the  mortgage,  and  also  costs  to  be  computed  by  the  Court,  or 
proper  officer  appointed  for  tha,t  purpose,  the  same  shall  be  deemed  and 
taken  to  be  in  full  satisfaction  and  discharge  of  the  mortgage  ;  and  the 
Court  shall  discharge  the  mortgagor  of  and  from  the  same  accord-r 
ingly  (b). . 

Upon  this  statute  the  Court  stayed  proceedings,  althoirgh  it  was  ob- 
jected that  the  defendant  had  agreed  to  convey  the  equity  of  redemp- 
tion to  the  plaintiif:  and  if  there  beany  doubt  as  to  the  amount  of 
■«hat  is  due,  the  Court  of  King's  Bench  will  refer  it  to  the  Master,  and 
that  of  Common  Pleas  to  the  Prothonotary,  whose  respective  duly  it  is 
to  tax  the  costs ;  and  if  the  debt  and  costs  are  not  paid,  the  plaintiff 
must  proceed  in  the  action,  and  cannot  have  ati  attachment  (r ). 

The  Court  however  would  not  stay  proceedings  in  an  ejectment 
brought  by  a  mortgagee  against  a  mortgagor,  on  the  latter  paying  prin- 
cipal, interest,  and  costs,  t\'here  the  latter  had  agreed  to  convey  the 
equity  of  redemption  to  the  mortgagee  (d). 

A  motion  was  to  stay  proceedings  in  ejectment  on  payment  of  mort- 
gage money  and  costs,  pursuant  to  this  act  ;  on  shewing  cause,  the 
plaintiiF  produced  an  affidavit  that  the*  mortgagee  had  been  at  great 
expence  in  necessary  repairs  of  part  of  the  premises  in  his  possession, 
(the  ejectment  was  brought  for  the  residue,)  and  therefore  prayed  that 
the  Prothonotary  might  be  directed  to  make  allowance  for  such  repairs. 
Per  Cur. — The  rule  must  follow  the  w  ords  of  the  statute  ;  the  Protho- 
notary will  make  just  allowances  and  deductions  {e). 

But  wliere.  there  were  two  mortgages,  the  Court  will  not  stay  pro- 
ceedings and  compel  a  redemption  of  one  mortgage  only,  upon  pay- 
ment of  the  principal,  interest,  and  costs,  on  that  mortgage,  without 
paying  the  rest  (/). 

A  judge  made  an  order  pursuant  to  this  Act,  to  stay  the  mortgagee's 
proceeding  in  ejectment,  upon  bringing  principal,  interest,  and  costs 
into  Court ;  and  a  rule  was  made  to  make  the  order  a  rule  of  Court 
nisi:  but  it  afterwards  appearing  to  the  Court,  that  notice  had  been 

(a)  T.  T.  41.  G.  3.     T'3  MSS.  "   (6)  Tidd's  Tract., 4G7.  CO  IWd.  4P.8. 

(d)  7  T.  H.  285.  (e)  2  Sell.  Piact.  220.  {/)  2  Bl.  R   72C. 


.SlcI,  II.J  the  Adioit  oj  Ejcchncnl ;  Ss'c.  .'{Dl 

given  by  the  mortgagee  to  the  mortgagor  that  he  insistod  upon  pay- 
nieiit  of  two  Ijonds,  whicli  were  a  lien  upon  the  estate,  the  case  wdiS  ad- 
judged to  1)0  out  of  this  act,  and  the  rule  nisi  was  discharged  (a). 

But  where  a  rule  on  the  statute,  to  shew  cause  why  proceedings 
sh  )ul(l  not  ])C  stayed  on  payment  of  Die  niortgage-mnney  and  costs, 
uas  made  al)Solijte  ;  upori  the  leFSors  of  the  plaintifl",  who  were  as- 
signees of  the  mortgagee,  insisting  to  be  j)aid  a  hond  and  a  simple  con- 
tract del)t  due  to  tiiemsclves  in  tiieir  own  right :  Jx  r  Cur. — A  bond  is 
no  lien  in  Cfjuity,  unless  wlicre  the  heir  comes  to  redeem. 

The  practice  now  I--,  ti»  sj;iy  proceeding  by  suinnT^!^^  bcf.re  a 
Judge  {h). 

Proceedings  also  will  be  stayed,  in  the  case  of  an  infant  lessor  of  the 
plaintiH';  that  of  the  death  of  plaintitf's  lessor,  perhaps;  that  of  the 
defendant  residing  abroad  ;  and  where  a  former  ejecl  nient  has  been 
brought  (r). 

By  the  practice  of  making  a  rule  to  stay  proceedings  in  this  action, 
on  the  denu'se  of  an  infant,  until  a  responsible  plaintiff  be  named,  or 
security  he  given  for  the  payment  of  costs,  if  an  infant  deliver  a  decla- 
ration to  a  defendant,  some  friend  or  guardian  may  set  up  as  pbinti.T, 
to  be  responsible  to  the  ilefcndant  for  his  costs.  But  if  such  person  die 
insolvent,  so  that  the  dcfendaiit  cannot  derive  any  benefit  from  the 
rule,  the  infant  himself  must  answer  for  tlie  costs:  the  rule  was  made 
for  his  benefit  ;  and  an  infant  must  not  disturb  the  posses-ion  of  others 
]ty  unlaw  fill  entries,  w  illitjut  being  liaMe  to  costs. — Previous  however 
to  any  motion  in  Court,  enquiry  should  be  made,  whether  there  be  a 
real  and  substantial  plaintiiV,  or  not :  for  on  enquiry,  the  guardian  may 
undertake  to  pay  the  costs :  and  in  case  he  should,  the  Court  would 
proba!)Iy  decline  to  interpose  (W). 

it  lias  likewise  been  hohlen,  that  upon  the  death  of  the  plaintiff's 
lessor,  the  proceedings  may  be  stayed,  till  the  plaintiil"  shall  have  giv- 
en the  defendant  security  for  his  costs  (c). 

So  where  an  ejectment  was  brought  on  the  demise  of  a  person  re'^id- 
ing  at  Antigua;  and  in  another  case,  where  the  lessor  of  the  plaintiff 
r;"-idc:d  in  frctand,  the  plaintiff  was  compelled  to  give  the  defendant  a 
:;imilar  security  :  in  the  latter  case  he  v. as  compelled  to  do  it,  althoii<;Ji 
it  was  an  ejectment  brought  uiider  the  direction  of  the  Court  of  Cii  ui- 
ccry,  wliere  the  bill  was  retained  till  after  the  trial  of  the  ejectuunt  ;!nd 
security  had  already  Ui-.vn  2:iven  there  :  which  sccurily  iiowevcr  was 
only  lor  M)/.  (/). 

Proreedings  Mere  stayed  till  the  costs  of  a  former  ejectment  broiicjlit 
by  the  f;ither  of  the  lessor  of  tlse  plaintiff  agaii:st  the  defend  ml'.s  fa- 
ther on  the  same  title,  were  paid  (r?). 

••     2,Sr'l   Trar  ..•  'l>  I  S'.r  4l.l.  is;  n  (--i   I  TWO'S  TrteL  47T. 

..,   r.ur>   y.JKt.  :■■>.■  (c;.2Str.  10>.  ■    2  Bur.  1177.  ('ftST.H    MS. 


392  Of  the  plea  and  Issue  in  [Chap.  XIV. 

But,  excepting  such  instances,  and  that  of  a  former  ejectment,  the 
Court  'ivill  not  compel  the  lessor  of  the  plaintiH'  to  give  security  for  the 
costs. 

Therefore,  a  rule  was  refused,  forthe  lessor  of  the  plaintiff  to  give 
security  for  the  costs  of  an  ejectment  deppnding.  Bailer  J.  said — The 
application  is  not  warranted  by  any  authority.  There  are  only  three 
instances  in  which  the  Court  will  interfere  on  behalf  of  a  defendant,  to 
oblige  the  plaint iJl  to  give  security  for  his  costs.  The  first  is  when  an 
infiir.t  sues;  then  the  Court  will  oh\igQi\\Q  pro  chein  amy^  or  guardian 
or  attorney,  to  give  security  for  the  costs :  secondly,  where  the  plain- 
tiff resides  abroad,  in  which  case  the  Court  will  stay  proceedings  till 
security  be'given  for  the  costs :  and  thirdly,  where  there  has  been  a 
iormer  ejectment ;  but  there  the  rule  is  to  stay  the  proceedings  in  the 
second  ejectment  till  the  costs  of  the  former  are  paid,  and  not  till  secu- 
rity be  given  for  the  costs  of  the  second  {a).  '     '  ..  ; 

Though  a  Court  may  sta}^  proceedings  in  a  new  ejectment  until  the 
costs  of  a  former  ejectment  between  the  same  parties,  and  also  the  costs 
of  an  action  for  raesne  profits  dependant  thereon,  are  paid :  yet  they 
will  not  extend  the  rule  to  include  the  damages  in  the,  action  for  the 
mesne  profits,  however  vexatious  the  proceedings  of  the  present  lessors 
of  the  plaintiff  may  have  been  (6). 

Particular  of  Uie  Breaches. — In  ejectment  brought  on  the  fcrfeiture 
of  a  lease,  the  Court  will  compel  the  plaintiff  to  deliver  a  particular  of 
the  breaches  of  covenant  on  which  he  intends  to  rely. 

So,  if  the  plaiutiff  declare  generally,  and  the  defendant  have  any 
doubt  what  lands  the  plaintiff  means  to  proceed  for,  he  may  call  qpon 
him  by  a  judge's  order  to  specify  them  (r).  > 

On  the  other  hand,  the  plaintiff'may  c<\{\  upon  the  defendant  to  spe- 
cify for  what  he  defends;whcn  Ihat  is  not  ascertained  by  tlic  consent 
rule— 7But,  in  general,  the' jury  complained  in  actions  for  wrongs  is 
stated  in  the  decIai:ation  ;  and  therefore  in  such  actions,  it  is  not  usual 
to  make  an  order  for  the  particulars:  circumstances  may,  however,  oc- 
cur, wliich  render  it  necessary  {d). 

Of  the  Flea  and  Issue,  SCc. 

The  general  rule  in  the  issue  of  this  action  is,  that  whatever  bars 
the  right  of  entry  is  a  bar  to  the  plaintiff's  title.  The  plaintiff  must, 
ihercforc,  prove  seisin  within  twenty  years  in  himself  or  his  ancestors; 
or  must  prove  seisin  in  a  third  person,  of  a  particular  estate  in  the  land, 
and  tliat  he  cla'med  within  twenty  years  after  the  reversion  accrued  ;  or 
th;ithe  or  she  v.  as  an  infant,  feme  covert,  non  compos,  imprisoned,  or 

Ca)  I  T.  K.  43;.       '  (t;  15  EaU's  R.  233.  fe)  1  TiJd'S  Fract.  535. 

^d)  Ibid. 


Sect.  J  I.J  Ihc  Action  of  Kjiclmdit  ;  iS'r.  \VX.\ 

beyond  the  sea,  at  llic  time  \vlirii  the  title  arcriicd,  and  that  hct  l.jiined 
Avithiii  twenty  yeur^^  after  he  canie  of  age,  A'r.  or  otherwise  hccanic  a 
free  aRent  l)y  such  disabijily  ceasing  :  for  every  plaintilF  in  cjectuicnt 
muht  shew  a  right  of  possession  as  well  as  of  property  ;  and  then  fore 
(lie  ilefendant  need  not  plead  the  statute  of  limitations,  as  in  other  ac- 
tions (a). 

A  fine  and  non-claim,  or  a  disccrit  cast,  \\Jiich  takes  away  the  entry, 
arc  gooil  pleas  in  this  action,  in  bar  of  the  plaintill's  rii;ht  of  entry  (6). 
So,  an  accord  with  satislaclion  is  a  l;ooi1  pk;i,   for  it  is  an  action  of 
trespass  in  its  nature  {<). 

Sf),  by  permission  of  t!ic  Court,  t)ic  defendant  may  plead  to  its  ju- 
risdiction: which  perniis.-ion  the  Court  >ui1  •  i-mf  !,»  I'mc  •nj-nu  m  „i^'> 
against  tlie  casual  ejector  (</). 

Ancient  demesne,  therefore,  may  be  pleaded  :  but  application  to 
plead  it  must  be  mnilc  within  the  first  four  days ;  and  there  must  be  an 
allidavit,  statiui^-  tliat  the  lands  are  holdcn  of  a  manor,  which  is  ancient 
demesne  ;  that  there  is  t  Court  of  Ancient  Demesne  regularly  holdcn  ; 
and  tliat  the  lessor  of  the  pldintiil'  has  a  freehold  interest  (r ). 

The  opinion  of  the  Court,  touching  this  pica,  was  pretty  clearly  ma- 
nifested in  a  motion  for  leave  to  plead,  it  being  denied  by  reason  of 
sullicicut   ground  not  l)eing  shewn  to  sujjjjort  it  :  on   which  occasion 
BIr.  J.  Foster  observed,  that  as  it  was  agreed  to  be  necessary  to  ask  the 
Icaveoftlie  Court  to  plead  this  pica  to  a  declaration  in  ejectment,  it 
followed  of  "course  that  it  must  be  in  the  discretion  of  Ihe  Court  either 
to  grant  or  refuse  their  leave  ;  and  he  thouirht  that  the  allidavit  in  the 
j)rip.cipal  case  was  not  suHicicnt  to  oust  that  Court  of  its  jarisdiction. 
Be  spoke  of  these  Courts  of-Anuicnt  I)eme<iid  as  4)utting  people  oat  ot 
the  protection  of  the  law,  and  fitter  to  be  totally  dcstroNtfl  tlian  to  l>e 
favoured  and  assisted.     BIr,  J.  Wiltion  said,  it  was  a  straui^e,  wild  ju- 
risdiction; where  the  jurors  arc  judges  both  of  law  and  of  fact,  %x\i\ 
.  noraiit  country  fellows  are  to  determine  the  nicest  points  of  law,  and 
ilicrefore  he  uas  not  for  granting  such  leave  unless  compelled  by  au- 
J:ority.     Indeed,  if  the  case  is  brought  strictly  within  tlie  rule,  then 
the  leave  must  be  j;ranted  :  .a/c  cannot  lielp  it.     The  authorities  dou  n 
from  ylldcii's  casi;  [5  Co.  105.J  to  this  time,  it  is  true,  are"  That  an- 
ent  demesne  is  a  good  pleaiii  ejectment."  But  if  you  would  oust  this 
urt  of  juiistliclinn,  you  nmst  shew  "  that  anotiier  court  has  jnrisdic- 
i  on."  Now  this  afhdavit  does  not  shew  "  that  there  ai^e  suitors  in  the 
licr  court,"   nor  *'  that  ihcsc  lands  are  hoKlen  of  a  manor,  uhich 
1  anor  is  holden  in  ancient  demesne  ;"  whereas,  if  the  lands  only,  and 
:t  the  manor,  arc  ancient  demesne,  the  matter  caniiol  be  tried  in  the 

'ft)  nun.  R)eet.  23«.        (6)  Ihid    TiS.  (c)  Ibid  (d,  1  01    It.  1D7.  ? 

"  'A'i  l'r«ct.  ff71    '  ■ "  ::     '. 


394  Of  the  Plea  and  Issue ;  SCc,        [Chap.  XIV. 

court  of  that  manor.  The  affidavit  oiight  to  have  shewn  "  That  the 
lands  are  holden  of  a  manor,  which  manor  is  ancient  demesne."  It 
cannot  be  tried  "  Whether  the  lands  themsdves  are  ancient  demesne." 
Doomsday  will  not  shew  this.  Doomsday  will  only  shew  whether  the 
manor  is  so  or  not.  The  form  of  the  plea  makes  this  as  clear  as  tlie 
snri.  It  ought  also  to  be  shewn  that  the  lessor  of  the  plaintilf  has  a 
freehold.  How  can  he  sue  there  in  ejectment  as  a  lessee  of  a  terra  ? 
Upon  such  a  strange,  wild  jurisdiction  as  this,  and  upon  such  an  affida- 
vit, I  am  not  for  giving  the  defendant  leave  to  plead  this  plea.  Rule 
discharged  («). 

In  every  such  plea,  therefore,  the  defendant  must  state  another  ju- 
risdiction :  as,  if  an  action  be  brought  here  for  a  matter  arising  in 
Wales,  to  ])ar  the  remedy  sought  here,  the  jurisdiction  in  the  Court  in 
Wales  must  be  shewn;  and  in  every  case  to  repel  jurisdiction  here, 
the  party  must  shew  a  more  proper  and  sufficient  jurisdiction  else- 
where (Jj). 

Pleas  either  in  bar  or  in  abatement  of  the  action  are  now,  however, 
seldom,  if  ever,  pleaded  :  for,  according  to  the  modern  practice,  the 
defendant,  if  he  appear,  is  generally  bound  by  the  consent-rule,  to 
plead  the  general  issue  of  not  guilty  :  but  where  an  ejectment  was  in- 
tended to  try  the  right  to  a  rectory,  the  defendant  was  admitted  to 
plead  that  he  himself  was  rector,  and  to  traverse  the  rectorship  of 
the  plaintiif's  lessor,  in  order  by  that  means  to  bring  the  right  in  ques- 
tion (c). 

For  the  most  part,  however,  the  defendant  can  plead  the  general 
issue  only  :  which  is  therefore  usually  left,  with  the  consent-rule,  at 
the  Judge's  chamber,  or  the  Prothonotary's  to  plead  ;  and  then  judg- 
ment may  be  entered  for  want  of  a  plea,  as  in  other  actions,  without 
a  special  motion  in  Court  for  the  purpose  (d). 

The  present  practice  of  delivering  a  declaration  to  the  casual  ejector 
before  the  Term,  forces  the  defendant  to  issue  the  same  term  (r). 

In  making  up  the  issue,  the  first  declaration  must  not  be  varied  from, 
except  in  the  defendant's  name  (/). 

According  to  the  words  of  the  rule  for  judgment  against  the  casual 
ejector,  unless  the  tenant  appears,  a  new  declaration  against  him  should 
in  strictness  be  delivered  before  a  plea  in  form  can  be  required  (^). 

"Where  the  name  of  the  plaintiif's  lessor  was  inserted  in  the  body  of 
the  plea  (as  the  person  complaining),  instead  of  that  of  the  nominal 
plaintilf,  judgment  signed  against  the  casual  ejector  under  the  idea  that 
the  plea  was  null  and  void  was  set  aside,  with  costs,  as  irregular  {h). 

fa>2Biir.  I0i7.     8T.  Tl.  474.  (ft;  Run.  Eject- 238.  fc;  Ibid. 

(d;ibicJ.  fc)  Ibid.  (/J  2Ld  Baym.  U',1.  («•)  2  Sell.  P»ct.  L88. 

\h)  lbi<», 


^cci.  II.]  Of  the  Juiilnire.  30.5 

A  new  (Ufciulunt  in  fjcctnient  may  .i;ivc  a  rule  to  reply  and  non-pros 
the  pliiiiitiir,  wlio  Ijciriq  rioiniiial,  can  have  no  costs  (^u). 

If  the  plaint  ill*  after  issue  antl  hefore  trial  enters  into  part  of  the  pre- 
mises, the  defendant  at  the  assizes  may  plead  it  as  a  plea  puis  darntn 
continuance :  nor  is  it  in  the  discretion  of  the  jiidii;e  to  rrjf^t  it  or  not ; 
but  he  is  bound  to  receive  it,  it  is  nuule  part  of  the  record,  ami  tlic 
trial  is  stopped,  for  the  plaintifl"  cannot  reply  to  it  at  the  assizes  [h). 

Death  of  the  riainti[l'.--'l'hc  dcatli  of  llie  plain!  i(V  in  ejectment  shall 
not  abate  the  action;  especially  if  another  person  of  the  same  numc  re- 
side on  the  lands ;  for  the  Court  will  take  notice  that  it  is  the  lessor 
of  the  plaintlirthat  is  concerned  in  interest  (r). 

As  the  plainllllhas  a  right  to  proceed  both  for  the  possession  and  the 
trespass,  the  death  of  the  lessor,  thouijh  he  be  only  tenant  for  life,  is 
no  abatement  ;  rjor  can  it  be  pleaded  puis  darricn  continunncc,  because 
the  right  is  supposed  in  the  Icfsee  :  and  though  tlic  possession  cannot  be 
obtained,  yet  the  plainliil"  has  a  right  to  proceed  for  damages  and 
costs ;  all  that  the  Court  can  do,  is  to  oblige  him  to  give  security  for 
costs,  when  the  lessor  is  dead  (d).  Hut  if  in  such  case  the  plaintiff  is 
nonsuited  for  want  of  defendant's  appearing  and  confessing,  the  execu- 
tor of  the  lessor  shall  have  no  costs  taxed  on  the  comnton  rule  (r ). 

Of  Dcfcndcuit. — If  one  of  several  defendants  die  after  issue  joined 
and  before  verdict,  the  death  should  be  suggested  on  the  roll  before 
trial,  and  a  venire  awarded  to  try  the  issues  between  the  surr  ivor?.  Yet 
■when  the  venire  was  awarded  against  both,  and  tlie  verdict  was  against 
both,up«n  suggesting  the  death  of  the  one  upon  the  roll  after  verdict^ 
the  plaintiJl  had  judgment  for  the  whole  against  the  other  (  /). 

O/dthtr  Party. — If  either  party  die  after  the  commencement  of  the 
assizes,  though  before  trial,  it  is  within  the  stat.  IT  C.  2.  c.  28.  made 
perpetual  by  1  J.  2.  c.  \7.  s.  5.  whereby  it  is  enacted,  That  in  all  ac- 
tions personal,  real  or  mixed,  the  death  of  either  party  between  the  ver- 
dict and  judgment  shall  not  be  ailed ged  for  error,  so  as  such  judgment 
be  entered  within  two  terms  after  verdict. — If  jutlgnent  be  signed, 
.  though  it  be  not  entered  on  the  roll  within  two  terms  after  vcrdi-.t,  it 
is  sullicient  {^g). 

Of  the  Evidence. 

In  this  action  the  Ic!i;al  title  must  prevail;  ii.jr  Is  tliere  ;ii:y   ci.r: 
ence  in  tliis  respect  between  the  case  of  an  ejectment  brought  by  atr^.^• 
tee  against  his  cestui  tjue  /rwj/and  any  other  person  {h)  :  the  j)laintifl  can- 
«ot  recover,  but  upon  the  btrcngth  of  his  own.title ;  he  cannot  fout;d  his 

(a)  2BI  R.  763.  (5;2SeU.  VnrX   193.    n  T.  RlSi.  ('J  I  MM  ?:.'.. 

(d;  2  ttll.  Pract  19.\    2  8tr.  1066.  ("O  2  Sell  !'«<•»   1 9P.. 

f/Wl>id.     I  Bur,  362,  {g)  2'^"   "      -   '    l 

•*•  TT  K.4T.    «T.1U.125.    4  Bur  :«: 


3,96  Of  the  Evidence  in  [Chap.  XIV: 

claim  upon  the  weakness  of  the  defendant's  title,  for  possession  gives 
the  defendant  a  riglit  against  every  man  who  cannot  shew  a  good  title. 
Therefore  though  tlie  defendant  have  no  title  in  himself,  if  he  prove  a 
title  out  of  the  lessor,  it  will  be  suincient:  and  any  person  in  posses- 
sion of  an  estate  as  tenant,  or  devisee,  may,  it  seems  liring  in  a  bill  in 
equity  to  discover  the  title  of  a  person  bringing-  an  ejectment  against 
him,  to  have  it  set  out  and  seen  whether  that  title  be  not  in  some 
other  (a). 

Thus,  in  ejectment  by  landlord  against  tenant  whose  lease  is  ex- 
pired, the  latter  is  not  barred  from  shewing  that  his  landlord's  title  is 
extinct  (/,'). 

But  when  defendant  would  i)rove  a  title  out  of  the  lessor,  it  must 
be  a  subsisting-  one  ;  for  tJie  mere  production  of  an  ancient  lease, 
though  for  a  thousand  years,-  will  not  be  sulTicient,  unless  lie  lilvewise 
prove  possession  under  it  within  twenty  yiears  (r). 

So,  if  the  defendant  produce  a  mortgage  deed,  the  interest  upon 
whicli  has  not  been  paid  and  the  mortgagee  never  entered,  it  will  not 
he  sufficient  to  defeat  the  plaintiff,  claiming  under  the  -mortgagor ;  be- 
cause it  will  be  presumed  that  the  money  was  paid  at  the  day,  conse- 
quently it  is  no  subsisting  title.  But  if  the  defendant  prove  interest 
paid  upon  such  mortgage,  after  the  time  of  redemption,  and  within 
twenty  years,  it  will  be  sufficient  to  nonsuit  the  plaintiff  {d). 

The  true  question  in  an  ejectment  is  who  lias  tlie  possessory  right. 
Thus,  where  the  tenant's  title  accrues  prior  to  that  of  the  lessor  of 
the  plaintiff,  the  latter  cannot  succeed  in  this  action ;  and  this  even 
tliough,  (where  he  claims  under  an  digit  subsequent  to  a  lease  granted 
to  the  tenant  in  possession,)  he  gives  the  tenant  notice  that  he  does  not 
mean  to  disturb  his  possession,  only  wishing  to  get  into  the  receipt  of 
the  rents  and  profits  of  the  estate  (c). 

So,  a  satisfied  term  may  be  presumed  to  be  surrendered ;  but  an  un- 
satisfied teriu,  raised  for  the  purpose  of  securing  an  annuity,  during 
the  life  of  the  annuitant,  cannot ;  but  it  may  be  set  up  as  a  bar  to 
the  heir  at  law,  even  though  he  claim  only  subject  to  the  charge  (/). 

It  has  however  been  resolved  by  Lord  Mansfield  and  many  of  the 
Judges,  never  to  suffer  a  plaintiff  in  ejectment  to  be  nonsuited  l)y  a 
term  standing  out  in  his  own  trustee,  or  a  satisfied  term  set  up  by  a 
mortgagor  against  a  mortgagee  ;  but  to  direct  the  jury  to  presume  it 
surrendered.  The  rule  is  to  be  understood  thus :  that  the  trust  estate 
shall  not  be  set  up  in  an  ejectment  to  defeat  the  cestui  gue  trust  in  a 
clear  case ;  in  such  case,  where  the  trust  is  perfectly  clear  and  manifest,  the 
rule  stands  upon  strong  and  beneficial  principles,  because  in  ejectment 

(n)  Bull.  N.  P.  110.    I  Ves.  2-19.  (b)  i  T.  Tl.  682.  (c)  Bull.  K.  P.  JIO- 

I'O  Ibid.  (0  8T.  R2.  r/;2T.R.  684. 


Srcl.   11. J  liu    miction  of  FJidmcnt ;  S'c.  ."JO? 

tlie  question   I?,  wlio  is   ciilitled  to  tlie  poi^scssion  (.<).     Rut  if   tins- 
trust  !)('.  doubtful,  a  Court  of  law  will  not  ikciilc  ujion  it  in  an  v.\\.x\- 
nicnt  (/<)• 

So  ulirrc  a  legal  trrni  was  created  for  a  particular  purpose,  ii  lint 
purpose  were  satisfied,  or  if  it  wire  uiisutibficd  and  nfit  coiuiecled  with 
the  li!ii;alinL;  parties,  it  shall  never  be  s(  I  ujj  l)(t\vet:i  them  in  eject 
iiieiit  ;  but  shall  l)C  considered  as  if  it  had  n-jvrr  been  creal<^d  (r). — In 
layinj;  down  tids  rule,  Lord  Mdus/ltld  observed,  that  "  W'-hen^  a  trust, 
term  is  a  more  matter  of  form,  and  the  deeds  mere  niimimcntb  of  an- 
other's estate,  it  shall  not  be  set  up  asjainrt  the  real  o\\  ner  :  it  it,  tliei*«  - 
fore  settled  that  a  satisfied  trust  shall  be  taken  to  be  a  trust  for  the  l>e- 
Dcfit  of  the  heir  at  law.  A  trust  sliali  never  Ijc  set  up  a^ainr.t  him  for 
\\  horn  the  trust  was  intended.  It  is  a  mere  form  of  conveyance  ;  aiul 
it  is  admitted,  that  w  lure  the  term  is  in  trust  for  the  bcnrfd  of  the  les- 
siir  of  the  p'ainliil",  the  defendant  bhall  not  set  it  up  in  ejectment  as  a 
bar  to  his  recovery  (c')^. 

"  To  v;o  a  step  farther :  third  persons  may  have  titles,  and  therefore 
tlie  Court  say,  that  where  tlierc  is  a  tenant  in  possession  unJer  a  leasR 
■^xhic'i  is  a  l)ar  to  the  recovery  of  t!ie  lessor,  he  being  to  recover  by  the 
strength  of  iiis  own  title,  yet  to  prevent  this  from  being  turned  impro- 
perly against  the  person  entitled  to  the  inheritance  whose  rii^ht  is  not 
disputed  by  the  tenant,  if  the  lessor  disjuite  the  property  only  againi^t 
another,  and  give  notice  to  the  tenant  that  he  does  not  mean  to  disturb 
his  tenancy,  the  Court  w  ill  never  suffer  the  tenant  to  set  u])  the  lease  as 
a  l)ar  to  tlie  recovery  (.  ). 

"  There  is  another  distinction  to  l)e  taken  ;  whether  supposing  a  titl? 
6Hperior  to  that  of  the  lessor  of  the  plaintiff  exists  in  a  third  person, 
wlio  mij;ht  recover  the  possession  against  him,  it  lies  in  the  juoutli  of 
the  defendant  to  say  so  in  answer  to  an  ejectment  brou2;ht  against  him- 
self by  a  party  having  a  belter  title  than  hisoun  (/).  1  fomid  this  point 
settled  before  I  came  into  this  Court,  that  tlie  Court  never  suffers  a  mort- 
gaj;or  to  set  up  the  title  of  a  third  ])crson  agaiiist  Jus  mortt.';agee  :  for  he 
made  the  mort;;age,  and  it  docs  not  lie  in  his  mouth  to  say  so,  though 
such  third  person  might  have  a  right  to  recover  pos>-cssion.  Nor  shall  a 
tenant  who  has  paid  rent,  and  acted  assuch,  ever  fct  upa  suijerior  title 
in  a  third  person  against  his  lessor  in  bar  of  an  ejectment  brought  by 
him  ;  for  the  tenant  derives  his  title  from  him"  ({;). 

Consonant  to  this  principle,  it  was  held  tliat  in  an  ej-ctment  brought 
l)y  a  second  ^lortgagec  against  the  mortgagor,  the  defendant  shall  not 
give  in  evidence  the  title  of  iiic  first  mortgagee  in  bar  of  the  second  ; 
because  he  is  barred  to  aver  contrary  to  hi*-'  own  act,  that  he  had  no- 


(a)  Uou;  72?.  4  T.  R.  CC.  7  T   M  2. 

,'•>  7T  R    47 

(.•.  1  T  :; 

(d)  Ibid,  in 0.  7)9.                -    !>>;■»  :.« 

-   •       Ihu) 

.•   1  ^v- 

Cowp.soi.  I  H.  HI   : 

30n  Of  the  Evidence  in  [Chap.  XIV. 

thing  ill  the  lands  when  he  took  upon  him  to  convey  by  the  second 
mortgage  (o). 

Also^  where  a  lessee  for  years  had  got  possession  of  some  mortgage 
deeds,  and  endeavoured  to  set  up  that  title  against  the  mortgagor  ; 
though  it  she\ved  that  the  plaintiff  had  no  right  to  recover  as  against 
the  second  mortgagee,  yet  he  was  permitted  to  recover  against  the  de- 
fendant in  that  instance  ;  and  the  decision  was  acquiesctd  under  {h). 
So,  the  surrenderor  Iiefore  admittance  is  considered  as  a  trustee  for 
the  surrenderee,  and  therefore  is  not  permitted  to  set  up  a  formal  ob- 
jection against  the  plaintiff's  recovering  that  property  which  he  holds 
for  his  benefit  (r). 

So,  that  thougli  as  a  general  rule,  it  is  true,  that  the  plaintilfin  this 
action  must  recover  by  the  strength  of  his  own  title,  constant  exceptions 
to  the  rule  have  notwithstanding  been  admitted  (c/). 

There  is  an  equity  for  the  landlord,  against  whom  judgment  had 
been  obtained  in  ejectment  by  his  own  negligence,  to  restrain  his  tenant, 
and  those  to  whom  he  had  attorned,  from  setting  up  the  lease  against 
his  ejectment,  though  a  year  and  three  quarters  of  the  term  were  un- 
exph-ed,  and  it  is  not  necessary  that  the  ejectment  should  be  brought 
before  the  bili  actually  filed  (e). 

Where  several  matters  are  necessary  in  order  to  establish  a  complete 
title,  the  plaintiff  must  prove  all  those  requisites. 

Therefore,  in  an  ejectment  for  a  rectory,  if  the  plaintiff  prove  the 
taldng  of  the  tithes  only,  and  not  an  entry  into  the  glebe,  he  will  be 
nonsuited.  For  the  plaintiff  ought  to  prove  that  his  lessor  was  admitted^ 
instituted  and  inducted,  and  that  he  has  read  and  subscribed  the  thirty- 
nine  articles,  and  declared  his  assent  and  consent  to  all  things  contained 
in  the  book  of  Common  Prayer.  But  he  need  not  prove  a  title  in  the 
patron ;  for  institution  and  induction  upon  the  presentation  of  a  stranger 
are  sufficient  to  bar  him  who  has  right  in  ejectment,  and  to  put  the 
rightful  patron  to  his  giiare  impccUt :  but  presentation  ought  to  be 
proved,  and  institution  would  not  of  itself  be  sufficient  evidence  of  it^ 
though  it  were  recited  in  the  letters:  especially  if  induction  or  posses- 
sion have  not  followed. — Whether  proof  of  a  verbal  presentation  would 
suffice,  seems  doubtful  (/). 

The  books  of  an  incumbent,  respecting  his  tithes,  may  be  evidence 
for  his  successor.  This  is  the  almost  only  instance  in  which  the  law 
permits  the  private  memoranda  of  a  person  deceased  to  affect  the  rights 
of  third  parties  [g). 

So  also,  if  an  ejectment  be  brought  by  the  assignees  for  lands  which 
may  liave  come  to  the  bankrupt  after  his  bankruptcy,  and  before  the  al- 

(a)  Run  N.  p.  110.  (6)  3  T.  U.  780.  in    .  '(«)  1  T.  R.  395.  600. 

,  (d)  I'oiii.  (t)  10  Vcs.  544.  Cf)  Latch.  62.  Bull.  N.  P.  105 

(g)  b  T.  U.  123.  2  Ves.  43.  cited. 


Sect.  II.j  the  Action  of  Kjcclmcnt ,  Kc.  H09 

Jowancc  of  the  ccrlificntc,  iJicy  s!i<m!<I  -iive  in  fvi'l'",r  >,  <.v.,,\  t  ron- 
vcymicc  of  Ihis  part  {n). 

KeasoiiaMe  presumption,  however,  will  Ue  admitted  in  favour  of  a 
title  (//}. 

Therefore  where  a  prebendary  I)roiii^Iit  this  action  to  recover  a  house 
huilt  upon  his  prchendal  scite,  the  prebendary  being  called  to  prove  the 
:;cveral  rcfpiisiUs  necessary  by  tiie  stat.  i;>  EUz.  i.  12.  and  1.)  iS:  1-4  C. 
i.  c.  t.  the  Chief  Justice  said,  "  Tl-.u!-c  sliall  be  presumed  upon  sound 
principles  of  lau*'  (r). 

So,  where  the  lessor  claims  as  heir  at  law,  as  for  instance  of  J.  it  is 
^udicitnt  to  prove  that  ^i.  was  in  possession,  and  that  the  lessor  is  his 
heir  ;  for  it  shall  be  intended, y;/7/;r((/<ir/c,  that  ./.  was  seisetl  in  foe,  till 
the  contrary  appear  (r/) ;  and,  if  there  be  an  agreement  before  marriage, 
that  aKcttJement  sliall  be  made  of  the  wife's  estate,  rescrvinL'  to  her  a 
power  to  dispose  of  it,  which  agreement  is  signed  by  the  intendid  hus- 
band and  wife,  l)ut  not  sealed,  and  before  the  marriage  the  wife  dis- 
poses of  it  to  the  liusl)and,  who  survives  l>cr  and  devises  the  cslate  by 
w  ill,  the  title  of  his  devisee  is  such  a  doubtful  equity  as  cannot  be  set  up 
in  an  ejectment  against  the  title  of  (he  wife  's  heir  at  law  (-"). 

So,  where  plaintilf  produces  an  original  lease  of  a  lon^  term  and. 
proves  possession  for  seventy  years,  the  mesne  assignments  shall  be  prc- 
sumetl  (  /  ). 

However,  as  to  the  doctrine  of  presumption  which  has  consideral>Ie 
•weight  in  the  scale  of  evidence,  this  general  princi[)Ic  must  be  attend- 
ed to;  namely,  that,  generally,  length  of  time  alone  is  notliing :  but 
presumption  nuist  arise  from  some  facts  or  circumstances  arising  within 
that  time  (r;)  :  for  there  are  two  sorts  of  presumption,  one  a  presump- 
tion of  law,  not  to  be  contradicted  ;  the  other  a  species  of  evidence  ; 
and  there  can  be  no  presumplion  of  the  nature  of  evidence  in  any  case, 
w ithout  something  from  whence  to  make  it ;  some  ground  on  which  to 
tbund  the  presumption. — Every  presumplion  may  be  encountered,  or  to 
jjpeak  more  technically,  rebutted,  by  contrary  evidence  ;  which  in  tlie 
case  of  executors,  is  called  rebutting!;  an  equity  ;  as  the  implied  revoca- 
tion of  a  will  for  example,  may  be  rebutted  by  parol  evidence  (.'0. 

Thus,  a  demise  of  premises  in  U'esfnunslrr,  late  in  the  occup  dion  of 
J.  particularly  describing  them,  part  of  which  was  a  yard,  does  not 
pass  a  cellar  situate  under  that  yard,  which  was  then  in  the  occupation 
of  li.  nnotlier  tenant  of  the  lessor,  and  the  lessor  in  a)i  eicr.tm<iit 
brought  to  recover  the  cellar  is  not  estopped  by  his  deed  from  g-'ing  in- 
to evidence  to  shew  that  the  cellar  was  not  intended  to  be  demised  (/). 
In  ejcctmeut,  the  landlord  having  proved  payment  of  rent  by  the  dc- 

'a)  2  K:p   N.  F  4  (8  (b)  7  T  R.  «W.  ('^  3  Will.  3C6. 

id.  Run  EJcoi.Dii  10  2T   R.  rsi.  (/JJBI    R   I2M. 


4U0  Of  the  Eddence  in  [Chap.  XIV. 

defendant,  and  half  a  year's  notice  to  quit  given  to  him,  cannot  be  turned 
round  by  his  witness  proving  on  cross  examination,  tliat  an  agreement 
relating  to  the  land  in  question  was  produced  at  a  former  trial  between 
the  same  parties,  and  was  on  the  morning  of  the  then  trial,  seen  in  the 
hands  of  the  plaintiff's  attorney,  the  contents  of  which  the  witness  did 
not  Inow  ;  no  notice  having  l^een  given  by  the  defendant  to  produce 
that  paper :  for  though  it  might  be  an  agreement  relative  to  the  land 
it  might  not  affect  the  matter  in  judgment,  nor  e^en  have  been  made 
between  these  parties  (rt). 

This  being  an  action  of  trespass,  the  ward  or  place  mentioned  in  the 
declaration,  is  material. 

Thus,  in  ejectment  for  a  house  in  the  parish  of  St.  P  tcr,  in  the  ward, 
of  Cheap,  the  defendant  })roved  it  to  be  in  the  ward  of  Farrin^don 
Vilthin,  and  that  no  part  of  the  parish  of  St.  Fetcr  was  in  the  ward  of 
Cheap,  and  the  plaintiff  was  nonsuited  {b). 

But  if  the  plaintiff  declare  on  a  lease  of  a  certain  date,  though  his 
proof  do  not  cstablisli  the  lease  as  declared  on,  yet  if  he  prove  a  good 
and  subsisting  lease  at  the  time,  it  w  ill  be  sufficient  (c). 

As  where  the  declaration  w  as  on  a  lease  made  the  14th  of  January^ 
30th  of  FJh.  and  the  evidence  was  a  lease  sealed  the  13th  of  the  same 
yrar,  the  evidence  was  held  to  be  good  ;  for  if  it  w  as  a  lease  sealed  the 
13th,  it  was  a  good  lease  on  the  I'ith  (J). 

'i'iie  rules  respecting  notice  to  quit,  before  a  tenant  at  w  i!!,  or  more 
correctly  speaking,  a  yearly  tenant,  can  be  ousted  of  liis  possession, 
and  what  will  amount  to  a  waiver  of  it  pointedly  apply  to  the  present 
subject ;  for  a  tenancy  must  be  determined  before  the  day  of  the  demise 
laid  in  the  declaration ;  we  refer  the  reader  for  information  on  these 
points  to  the  seventh  chapter  of  this  work,  where  they  occur  as  con- 
nected with  the  tenancy  from  year  to  year. 

Notice  to  determine  a  composition  for  tithes  must  be  the  same  as  be- 
tween landlord  and  tenant  (r). 

If  a  mangels  into  possession  of  a  house  to  be  let,  without  the  privity 
of  the  landlord,  and  they  afterwards  enter  into  a  negotiation  for  a  lease, 
but  differ  upon  the  terms  ;  tlie  landlord  may  maintain  ejectment  to  re- 
cover possession  of  the  premises,  w  ithout  giving  any  notice  to  quit  (/). 

An  ejectment  is  a  possessory  action,  in  which  almost  ail  titles  to  land 
arc  tried  (^g). — Whether  the  party's  title  be  to  an  estate  in  fee,  fee-tail, 
for  life,  or  for  years,  the  remedy  is  by  one  and  the  same  action  ;  and  it 
is  now  almost  the  only  remedy  in  practice  for  recovering  land  wrong- 
fully withheld  (A). 

In  this  action,  tlierefore,  titles  to  lands  arising  under  wills  are  tried. 
— These  for  the  laost  part  are  cases  brought  by  the  heir  at  law  against 

(ffl)  12  East's  R.  237.  (h)  1  Str  S95.  (c)  2  Fsn.  N.  P.  459.  (rf;  4  Leon   14. 

(c)  2  Br.  D   101.  (/J  2  Cauijib.  505.  {£)  1  Bur.  90.  (.A)  2  Bur.6ft7. 


S<  cl.  ly  Ike  Action  of  Kjcrtmcut ;    S'r.  101 

tlio  «l(j^re,  or  nc:ainsl  the  person  wlio  claims  (o  be  heir  at  hu,  on  the 

groij^l  of  iKictaiily  ;  or  by  a  devisee  cl  liiniiiq  an  estate  under  a  w  ill. 

hi  re  one  l)iiiij,san  ejectiiu'iit  as  Iicir  at  la\i,  lie  ou'^ht  properly  to 

a  regular  pedigree  from  Ww.  ancestor  xiiuler  \\  Iioni  he  claims: 

\'  report   of   relationship,   or  suppositinn,  are  not  stilllcient  ;  for  if 

It  ei  iilcnce  were  admitted,  the  estate  might  be  carried  contrary  to 

1^'  rules  of  descent ;  as  for  example,  to  tlie  paternal,  instead  of  the  ma- 

nial  line  («). 

The  entry  of  the  lieir  is  micr-s  ii y  only,  where  the  l.uuls  \w n;  m  the 
ictiial  occupation  of  his  ancestor  :  for  if  tliey  are  held  under  a  lease  for 
'yens,  and  the  lessee  had  entered  under  his  lease,  tlie  heir  w ill  be  con- 
sidered as  havini^  a  seisin  in  deed,  before  etitry  and  receipt  of  rent ; 
because  the  possession  of  tlie  Icrsee  for  years  is  liis  possession  i^h). 

In  ejectments  against  deviseee,  or  their  heirs,  the  matter  turns  on  the 
iiic  execution  of  the  w  ill ;  on  the  testator's  capacity  to  dc\  i>e  (r)  ;  or 
on  tlie  legality  of  the  de\  ise  itself:  and  thouyh  in  order  to  eiiectuate 
the  intention  of  a  devisor,  a  giieater  latitude  of  construction  is  allowed 
by  the  Courts  in  the  case  of  a  will  than  in  tile  construction  of  deeds  (r/)  ; 
yetjwords  tending  to  dij-inhcrit  the  iitir  at  law  arc  sinufficient  to  prevent 
Jiis  taking,  unless  the  estate  be  given  to  somebody  else  (/-,■).  For  it  is  a 
rule,  that  the  heir  at  la\y  is  not  to  be  disinherited  without  jwsilivc 
words  in  the  will,  or  a  ])lain  intention  in  the  devisor  that  he  shall  be 
so,  to  be  collected  from  the  w  ords  of  the  w  ill  (  /). 

The  defendant  in  ejectment  i;  entitled  to  the  gcnsral  reply,  wli're 
the  plalntiif,  claiming  by  descent,  proves  his  pedigree  and  stops,  and 
the  ilefcndani  sets  up  a  new  case  in  his  defence,  which  is  answered  by 
evidence  on  the  part  of  tlic  plaiiitilf  [c). 

As  this  action  sometimes  turns  upon  the  question  of  marriajie,  it  may 
])e  observed,  that  marriages  in  fact  may  be  proved  either  by  the  regis- 
ter or  a  copy  of  it,  or  by  vha  voce  evidence  of  tlie  ceremony  corrobora- 
ted by  circumstances  identifying  the  parties  (/<).  It  is  not  necessary, 
Iiowever, to  prove  a  marriage  in  fact:  a  reputed  marii.ige  will  be  sulU- 
cient;  and  that  may  be  substantiated  by  cohaI)iluti()n,  reputation, or 
other  circumstances,  from  which  a  marriage, nuy  be  inferred  (/) ;  a>i«l 
whoever  wishes  to  impeach  a  marriage,.  mu:;L  slicw  wluiein  it  ^sas 
irregular  (/.). 

"With  respect  to  cohabitation,  it  is  the  practice  to  admit  evidence  of 
wliat  the  parties  have  been  heard  lo  say  as  to  their  being  or  not  being 
married  (/). 

In  this  action,  thrrcforn,  proof  of  marriage  di.Ters  from  that  required 
in  a  dower,  in  which  latter  action  it  must  l)C  trie«l  ])y  the  l)is!iop's  certi« 

(a)  CBI    U.  1099.  (6).  1  CruUe'd  D:  <  n.  W.U    .v: 

.  i.  n.:;3o  «.T  R-213.  (p." :  B»|>.  N.  P. 4S7.  !-/   '1  ii.i.;  .rtc. 

.,•  ,  II.H.  582.  •    ^14TU.4'J7.  r*^  nun  Eji-ft  Xi  .t 

V"  •■•;.  :'•  r;,i:  r:^  "  :•: 


402  Of  the  Evidence  in  [Chap.  XW. 

ficate.  However,  except  in  cases  of  actions  for  criminal  coi^rsatioD, 
(wiiich  arc  in  some  sort  penal  in  their  nature)  and  prosecutions  for 
bigamy,  (in  both  of  which  an  actual  marriage  must  be  proved ),\|^pu- 
tation  is  a  good  proof  of  marriage,  and  the  jury  may  infer  it  froiimcir- 
cun. stances  (..).  .v^^ 

If  the  lessor  of  the  plaintilT claim  title  as  guardian  in  socage,he  m^j 
be  called  upon  to  prove  that  the  infant  is  not  fourteen  years  of  age  (l 

In  ejectment  of  tenants  of  the  mortgagor,  he  defended,  and  t 
plaintiiT  proved  the  mortgage  only,    uhich  proof  was  held  not  to 
sufficient ;  for  he  should  have  proved  the  lands  to  be  in  possession  of  th 
persons  to  whom  the  ejectments  were  delivered,  as  the  defendant  onl 
admits  himself  to  fie  landlord  to  them  of  lands  in  their  possession  (^r). 

If  tenant  by  elegit  he  lessor  of  the  plaintiif,  it  will  be  necessary  for 
him  to  prove  the  judgment,  the  el'git  taken  out  upon  it,  and  the  inqui- 
sition and  return  thereupon,  by  wliicli  the  land  hi  question  is  assigned 
to  him  (f/) ;  and  if  by  that  it  appear,  that  more  than  a  moiety  was  ex- 
tended, he  cannot  recover,  for  it  would  be  ipso  facto  void,  and  not  need 
a  judgment  or  audita  querela  to  avoid  it  (^). 

So,  in  ejectment  by  the  conusee  of  a  statute-merchant,  he  must 
prove  a  copy  of  the  statute,  and  of  the  capias  si  fncins  returned,  and- 
the  extent  also  returned,  and  also  the  //■Oerr/fc  returned  ;  for  though  by 
the.  return  of  the  extent  an  interest  is  vested  in  the  conusee,  yet  the  ac- 
tual possessionof  the  interest  is  by  the  liberate  :  for  an  extent  gives  on- 
ly a  possession  inlaw  (/). 

In  ejectment  for  a  copyhold  on  a  forfeiture,  the  plaintiiT  ought  to 
prove  that  his  lessor  is  lord  and  the  defendant  a  copyholuer,  and  that 
he  committed  a  forfeiture;  but  the  presentment  of  the  forfeiture  need 
not  be  proved,  nor  the  entry  or  seisure  of  the  lord  for  the  for- 
feiture i^g). 

If  an  ejectment  be  brought  against  the  lessee  for  years  of  a  copy- 
holder (relying  upon  the  lease  as  a  forfeiture)  the  plaintiiT  must  prove 
an  actual  admittance  of  the  copyholder  :  and  it  wiil  not  be  sufficient  to 
prove  the  father  admitted  and  that  it  descended  to  the  defendant's 
lessor  as  son  and  heir,  and  that  he  had  paid  quit  rents :  for  a  copy- 
holder  cannot  make  a  lease  except  to  try  a  title,  before  admittance  and 
an  actual  entry  ;  and  therefore  if  after  admittance  he  w^ere  to  surren- 
der without  making  an  actual  entry,  the  surrender  would  be  void  (A). 

The  recital  of  the  will  in  the  copy  of  the  admittance,  is  good  evi. 
dence  of  the  devise  against  the  lord  or  any  other  stranger.  But  if  the 
suit  be  between  the  heir  of  the  copyholder  and  the  devisee,  the  will 
itself  ought  to  be  produced  (/). 

(a)  2  Wils.  122.  125.  2  Str.  9G0.  7  T.  R.  35.    1  Doug.  174.  1  T.d.  Raym.  714.  1  Bl.  R.  632. 
4  Bur.  2059.  (  b)  Run.  Eject.  225.  (c)  2  Sell.  I'lact.^Sie.  2  Cromp.  Pract.  l94. 

(d)  Bull.  N.  P.  104.  (c;  ^ialk.  503.  1  T>d.  lUyra.  718.  (/)  ""H-  N.  P.  104. 

(i')  Ibid.  107.  [fewrfcante.]  {k)  Ibid.  C«)  Ibid.  108. 


i 


Seci.  TI.]  the  Action  of  Fjeclment,  SCc.  i^YJ 

Whether  copyholds  are  witliiii  the  Rtatutc  as^ainrt  fraudulent  con- 
veyances, and  Ihcrefurc  the  plaintiUcI-iimin';  unilcr  a  vohiiitiiry  con- 
vcynnce  shall  prevail  aL.ainst  a  defendant  tlainiin:;  under  a  siiljscqucnt 
purchase  lor  a  valuable  consideration,  is  doubtful  (ji). 

If  tiie  trustees  of  a  pu!)Iic  turnpike  act,  ^vhich  empowers  them  to 
erect  toll-houses  and  to  mortgage,  and  wliich  declares  that  there  siiall 
l)e  no  priority  among  the  creditors,  have  made  a  mortgage  of  the 
toll-houses  and  gates,  uhicli  is  not  within  their  power,  and  an  eject- 
ment isl)rought  against  theni  by  the  njorlgagrc,  they  are  not  estopj)e<l 
by  their  deed  from  insisting  that  tlie  Act  gives  them  no  such  power  (/>) ; 
for  the  general  principle,  that  the  party  granting  is  estopped  by  ids 
deed  to  say  that  he  had  no  interest,  does  not  apply  w  here  trustees  arc 
acting  not  for  their  own  benefit,  but  for  that  of  the  public;  besides 
the  deed  cannot  operate  in  direct  opposition  of  an  Act  of  Parliament 
which  negatives  the  estoppel ;  and  this  being  a  Public  Act,  the  Court 
art  bound  to  take  notice  tliat  the  trustee  had  no  such  power  (c). 

Witnesses. — With  rcspet  to  witnesses,  in  general  a  witness  must  tcs» 
tify  from  his  own  know'ledge  of  the  fact  which  he  is  called  upon  to 
prove  ;  but  he  may  arsist  his  memory  as  to  the  circumstance,  by  me- 
vioranda  taken  at  the  time  ;  yet  if  he  docs  not  speak  from  any  recollec- 
tion which  he  has,  but  merely  from  such  viemoranda,  the  original 
minutes  must  be  produced  by  him  at  the  time  of  examination  (</). 

Tiie  tenant  is  incompetent  to  prove  tlie  fact  of  possession  ;  for  the 
cannot  be  permitted  to  support  his  own  possession,  by  his  own  teslimo- 
ny  ;  besides  he  is  liable  for  the  mesne  profits  (r). 

But  where  a  w itncss  produced  to  prove  the  lease  Avas  objected  to 
because  he  liad  tlie  hihcritance  in  the  land  demised,  it  being  answered 
that  both  parties  claimed  under  the  same  person,  he  was  admitted  to 
give  evidence:  for  under  circumstances  between  indiilerent  persons, 
and  where  he  has  not  any  interest  in  the  question,  the  landlord  is  a 
competent  witness  to  prove  the  terms  of  his  own  demise  (/"). 

In  an  action  at  the  suit  of  a  tenant  claiming  a  right  of  common  over 
a  piece  of  waste  land  against  tlie  owner  of  an  adjoining  close,  for  ni>t 
repairing  and  intervening  fence,  the  landlord  under  whom  the  pi  lintiiT 
holds  the  prcniises  in  respect  of  which  he  claims  the  right  of  common 
is  not  a  competent  w  itness  to  prove  the  right.  Neither  in  such  an  ac- 
tion arc  others  who  have  a  similar  right  of  coniniun,  competent  wit- 
nesses for  that  purpose  (i,'). 

Declarations  by  tenants  are  admissible  evidence  after  their  death,  to 
slicw  that  a  certain  i)iece  of  land  is  parcel  of  thecf^titc  which  they 
occupieil ;  aiKl  pro>)f  iJiat  they  excrci.-ed  acts  of  ownersliip  in  it  (not 

(a)  Bull.  N.  p.   109.   Dou;l.  716.  n    1.  Cowp.  ;   :^  :',)  Z    T.   R.  !■ 

(liJKun.  Kject.  243.  C«>  Corp.  822.  I  Sir.  Ml 

V"J  3  T.  It.  aw    Hun.  F.;«et.  251.  IT.  R    4.  (g)  I  r«iupb.  SW. 


404  Of  the  Evidence  in  [Chap.  XIV, 

resisted  hy  contrary  evidence,)  is  decisive. — Whether  parcel  ornot,  is 
aluays  mailer  of  evidence  (•-/)• 

So,  where  the  plaintiff  claimed  as  devisee  in  remainder  under  a  will 
twciity-scvcn  years  before,  under  which  there  was  no  possession, 
declarations  hy  the  tenant  who  was  in  possession  at  that  time,  that  he 
hekl  as  a  tcjiant  to  the  devisor,  were  admissible  evidence  to  prove  sei- 
sin in  the  divisor  (/>). 

So,  a  grantee,  when  he  appears  to  be  a  ])ar8  trus'ee,  is  a  good  wit- 
ness to  prove  the  execution  of  the  deed  to  himself  (c ). 

An  heir  apparent  may  be  a  witness  concerning  the  title  of  the  land, 
but  the  remainder-man  cannot,  for  he  has  a  present  estate  in  the  land  ; 
])ut  the  heirship  of  the  heir  is  a  mere  contingency.  So,  tenant-in-tail, 
remainder  in-tail,  he  in  remainder  cannot  be  a  witness  concerning  the 
title  of  these  lands  ;  for  he  has  an  estate,  such  as  it  is  (d). 

In  an  action  at  the  suit  of  a  lessor  against  his  lessee,  for  not  culti- 
rathig  the  farm  according  to  covenants  contained  in  the  indenture  of 
lease,  the  sub-lessee  of  part  of  the  premises  is  a  competent  ^^  itness  to 
prove  performance  of  the  covenant  on  part  of  the  defendant  (<"). 

As  to  executors,  an  executor  may  be  a  witness  in  a  cause  concerning 
the  estate,  if  he  have  not  the  surplusage  given  him  by  the  will  (/). 
It  is  clear  tliercfore,  that  an  executor  in  trust  may  be  a  witness  ;  and 
it  is  now  held  to  be  no  objection  to  an  executor's  testimony,  that  he 
may  be  liable  to  actions  as  executor  de  son  tort.  So  an  executor  who 
takes  not  any  beneficial  interest  is  a  competent  witness  to  prove  the  sa- 
nity of  his  testator  (g). 

A  person  who  had  sold  the  inheritance  without  any  covenant  for 
good  title  or  warrantry  was  allowed  to  be  a  witness  to  prove  the  title  of 
the  vendee  (//). 

Husband  and  wife  cannot  in  any  civil  case  be  admitted  as  witnesses 
for  or  against  each  other  ;  this  is  now  considered  as  a  settled  principle 
of  law  (/). 

A  clerk  of  the  Post  Office  accustomed  to  inspect  franks  for  the  de- 
tection of  forgeries,  was  allowed  to  be  examined  to  prove  the  hand- 
writing of  an  instrument  to  be  an  intitated  and  not  a  natural  hand, 
and  also  to  prove  that  two  writings  suspected  to  be  imitated  hands 
were  written  by  the  same  person  (A).  But,  in  a  subsequent  case, 
w here  similar  evidence  was  offered  to  be  produced,  L.  Kenyon  said  he 
could  not  receive  it,  and  observed,  that  though  such  evidence  was 
received  in  the  preceding  case,  he  had  in  his  charge  to  the  jury  laid  no 
stress  upon  it  (/). 

The  further  extent,  his  Lordship  observed,  to  which  the  rule  had 

(o)2T.  n.  53.  (t)  Ibid.  55.        (c)  1  P.  Wms.  237,  290.  (rf)  Salk.  233 

(»)  1  Campb.  3-ll.        (/)  I  Alod.  107.        (g)  Doug.  139.   Ul.  (h)  1  Str.  445. 

lO  4  T.  R.  87U.  2  T.  R.  2r,8.  (J-;4T.  R.  497.  (I)  Peaie's  L.  Of  £vid.   176. 


Sect.  11.]  tin-  Acl'ion  of  Ejirlmdil,  S,'r.  10.1 

Ixrn  carried,  was  to  admit  a  porsDt)  wlio  had  l)««n  in  the  h.ihit  of 
holding;  an  epistDlary  corrJ-spondeiicr  wifli  the  party  to  prove  his  hand- 
urilintr,  fnmi  tlic  kni)\vlcdu;c  wljich  he  acrpiired  in  the  course  of  that 
correspondence;  a  ca<e  reported  l)y  Fit-inhl/oti,  (I'Jo)  was  the  first  In 
which  siic[i  evidence  was  admitted.  Tliat  evi»h'ncc  was  admitted  on 
sound  jirlncijjles ;  for  if,  where  letters  .are  sent,  directed  to  a  particular 
person  on  piuticuhir  business,  an  answer  is  received  in  due  course,  it 
is  a  fair  prcsumj)tion,  tliat  the  answer  was  written  l>y  the  person  whose 
liandwriting  it  purports  to  lie:  but  the  franks  [proof  of  which  was  in 
question,]  niii^ht  bethc  defendant's  liandwritinc:,  or  they  nu.;ht  bj 
forg'-rics,  for  no  commnnlcalion  on  the  subject  of  the  action  [a  bill  of 
exchaiii^e  Ijavlni;  on  it  the  sui)posed  acceptance  of  the  defcndanl]  was 
had  with  the  tlefendant  (./). 

U'itli  resj)ect  to  tiie  objection  of  interest,  which  if  su])';tantiatc{l 
applies  to  tiic  competency  of  a  witness,  if  a  person  wlio  is  interested, 
execute  a  surrender  or  release  of  his  interest,  he  may  be  examined  as 
a  witness,  aitliough  the  party  refuse  to  accept  the  surrender,  or  re- 
I  ase  :  for  every  objection  of  interest  j)rocceds  on  tlic  presumption  that 
it  may  bias  the  mind  of  the  witness;  but.  this  prcsiimption  is  taken 
away  by  proof  of  his  liaving  done  all  in  his  power  to  ijct  rid  of  tlie  in- 
terest (//). 

An  objection  of  the  competency  of  a  w  ilncss  sliould  be  first  made  at 
the  trial  (r)  ;  for  if  made  then,  it  may  be  shewn  to  have  been  released, 
or  otherwise  done  away  :  therefore  on  motion  for  a  new  trial,  no 
objection  to  a  witness  can  l)e  rceived,  wliich  was  not  mailc  at  the 
trial.  Nay,  an  objection  to  tlie  competency  of  witness  tliscovcrcd 
after  trial,  is  not  sullicicnt  ground,  of  itself,  ft)r  granting  a  new 
trial  ;  though  it  may  have  some  weight,  if  the  a|)p!icanl  appears  to 
have  merits  :  and  though  the  objectiiMi  appears  properly  made  at  the 
trial,  yet  in  case  of  doubt,  it  is  usual  to  apply  to  tlie  credit,  rather  than 
the  competency  of  a  witness  {J). 

Respecting  the  weight,  as  evidence,  of  a  survey  of  lands,  it  is  laid 
down  generally  by  Lord  C.  B.  CUbcrt,  that  an  old  terrier  or  survey  of 
a  manor,  whether  ecclesiastical  or  temi>oral,  may  be  given  in  evidence, 
for  there  are  no  other  ways  of  ascertaining  the  old  tenures  or  bound- 
aries ('•). 

Accordingly,  the  survey  of  a  religious  liousr,  taken  in  loG.J,  was 
allowed  to  be  good  evidence  to  prove  the  vicar's  right  to  small 
tithes  (/■). 

But  this  opinion  seems  to  relate,  with  regard  to  terriers,  to  such  as 
are  signed,  not  only   by  the  parson,  b.it  by  the  churchwardjns  and 

{a^  Pe«ke'«T,  oTEtM.  17fl  't)  Foul-  )»l.  <')  II>«<1  '•»"• 

(d)  IT.  K.719.  RiiD.  Kj.Ct  8JCI.   Bl    H    344  '     '  »*f   **•   '•"•'" 

I  /■ )  ;  Will    170 


406  Of  ike  Verdidin.  [Chap.  XIY. 

suhstanlial  in]ial)iiants  of  ths  parish,  or  at  least  ])y  the  churchwardens, 
not  behi^of  the  parson's  nomination  :  and,  in  respect  of  surveys,  to  such 
as  are  signed  by  the  tenants  of  the  raanqr,  or  appear  to  have  been  made 
at  a  court  of  survey.  For  then,  being  of  a  public  nature,  they  can- 
not be  supposed  to  have  l)cen  framed  and  attested  to  serve  the  private 
interest  of  any  individual  :  upon  which  principle  also,  court  rolls,  or 
at  least  parish  books  are  admitted  in  evidence,  when  the  rights  of  third 
persons  are  concerned  (r/). 

But  surveys,  although  of  a  private  nature,  have  been  admitted  in 
evidence,  where  circrnnstances  could  be  adduced  to  shew  the  improba- 
bility of  their  being  taken  to  serve  any  interested  purpose  in  the  maker. 
— Thus,  where  two  manors  were  in  the  hands  of  the  same  person, 
and  a  survey  was  to  be  taken,  and  afterwards  one  of  them  was  con- 
veyed to  another  person,  and  after  a  long  time  there  were  disputes 
between  the  lords  of  the  two  manors,  this  old  survey  was  held  to  be 
evidence.  So  an  old  map  of  lands  was  allowed  to  be  evidence;  as 
when  it  came  along  with  the  writings  and  agreed  with  the  boundaries 
adjusted  in  an  ancient  purchase  (^b). 

But  where  a  terrier  or  survey  is  not  attended  with  such  circum- 
stances, and  is  the  mere  private  memorial  of  the  party  for  whom  it  is 
made,  it  seems  only  admissible  as  evidence  against  him  (r). 

Where  a  landlord  has  a  right  to  enter  for  non-payment  of  rent,  he 
cannot  recover  in  ejectment  at  common  law,  unless  he  demand  the  rent 
on  the  day  on  which  it  became  due  ;  nor  under  the  statute  4  G.  2.  if 
suflTicient  distress  be  on  the  premises  (d). 

Of  the  verdict. — With  respect  to  the  verdict,  the  plaintilT  shall  re- 
cover according  to  the  title  that  he  makes  out,  though  not  consistent 
with  that  stated  in  the  declaration ;  for  the  true  question  in  an  eject- 
ment is,  who  has  the  possessory  fight  (c). 

Therefore,  where  the  plaintiff  declared  on  a  demise  for  seven  years, 
but  had  title  to  five  only,  he  recovered  according  to  his  title  notwith- 
standing (/). 

So,  the  plaintiir  may  recover  as  many  acres  as  he  proves  title  to, 
though  he  declare  for  more :  and  though  the  declaration  goes  for  several 
things,  and  there  is  a  general  verdict ;  though  the  declaration  be  bad 
as  to  part,  yet  the  plaintiff  may  recover  for  the  remainder  (^). 

As,  where  ejectment  was  "  fur  one  messuage  or  tenement  and  four 
acres  of  land  to  the  same  belonging  ;"  the  words  "  to  the  same  belong- 
iiii;,"  werp.  held  to  be  void  ;  for  land  cannot  properly  belong  to  a 
bouse,  and  then  it  is  as  a  declaration  of  a  messuage  or  tenement,  and 
four  acres  of  land  ;  which  though  it  be  void  for  the  first,  it  is  good  for 

(a)   1  Wils.  170.  (h     Ibid.  {c)  Ibi.l. 

{d,  7  T.  n.  117.  (e)   bull.  N.P.  lOu.  ^         (f)  Ibid.   3  T.  R.  13. 

(ff)  2  Esp.  N.  P.  490.   I  Bur.  330. 


Sect.  II.]  Ihc  Action  of  Fjulintnl,  cVr,  107 

the  land;  wlicrcupcMi  llic  plaiiili  IV  released  the  dainaLjos  and   lor    tiif 
four  acres  had  jiidLjnjent  (a). 

In  a  recovery  for  ejectment  of  one  Inindrrd  acres  of  land,  twenty  of 
pasture,  N.c.  without  iiuiitionof  any  house  or  K'»r''*"»  't,  was  nevtr- 
tlitl'-ss  helti  that  the  plaint i(V  should  recover  all  the  « rections  there- 
on (A). 

The  ni;ixini  hnucvrr  (hat  n/;i;s  est  solum,  ijin  rst  vsi/ur  ml  ruhim  et 
nd/iiftros,  iloes  not  ai)[)ly  in  every  case  :  for  it  has  heen  adju<lged, 
thatllic  demise  of  premises  in  Westmiustcr,  late  in  the  occupation  of 
/.  parttcidarly  descrihini^  them,  part  of  which  was  a  yard,  did  not 
p;iss  a  cellar  situate  uinler  that  yard  which  wa-^  lln  n  in  IIm'  <u(  uitati  iU 
of  li.  another  tenant  of  the  lessor  {c). 

A  verdict  cures  a  defect  in  setting  out  the  title,  though  it  cannot 
cure  a  defective  title  {d). 

After  verdict,  if  the  objection  he  grounded  upon  tl)e  mere  mistake 
of  the  clerk,  or  a  triflini,-  nicety,  there  is  no  need  of  any  actual  anicnd. 
iijcnt  at  all;  the  Court  will  overlook  the  except  ion  (<  )• 

This  distinction  therefore  must  he  atten(li;d  to  :  if  there  he  only 
evidence  at  the  tritd  upon  such  of  the  counts  as  are  good  and  consist- 
ent, a  general  verdict  may  be  altered  by  the  notes  of  the  Judge,  and 
entcreil  only  on  those  counts;  hut  if  there  he  any  cvid-rice  applicable 
to  the  other  had  or  inconsistent  counts,. the />o.s/<yi  cannot  be  amended  : 
the  only  remedy  then  is  by  a  venire  de  novo  (  /  ), 

After  verdict  in  ejectment  for  a  messua;;e  and  tenement,  the  Court 
Mill  l^ive  leave  to  enter  the  verdict  accordiu::  to  the  JuiIl^c's  jjotes  for 
the  messuage  only,  pending  a  rule  to  arrest  Ihe  judgmiiit,  without 
obliging  the  lessor  of  the  plaitiliif  to  release  the  damages  (:>■). 

Of  tlw  Judgment. — The  judgment  in  ejectment  is  a  recovery  of  the 
possession,  (not  of  the  seisin  or  freehold)  uilli(»ut  prt-juilice  to  the 
right  as  it  may  afterwards  appear,  even  between  the  [)ar1ies.  lie  who 
enters  under  it,  in  truth  and  substance  can  only  be  j)osscssed  accord- 
ing to  vv^\\\^proul  lex  postulat.  If  Jie  has  a  freehoUl,  he  is  in  as  a  free- 
holder; if  he  has  a  chattel  interest,  lie  is  in  as  atirmor:  and  injrespect 
of  the  freehold,  his  po'^session  enures  according  to  rig'it.  If  he  has  no 
title,  he  is  in  as  a  trespasser  ;  and  without  any  re-entry  by  lae  true 
owner,  is  liable  to  accoimt  for  the  profits  (.'O- 

Where  the   plaintilf  declares  for  tlie  wh.jle  of  cdtain  pnmi«esof 
which  he  reeov«red  a  moiety  only  the  jiidgnuut  siioiild  imt  be  f-r 
moiity  only,  hut  that  the  i)!ainliir  reco\er  liis  term  ;  and  he  must  take 
out  execution  for  no  more,  than  Ik-  has  a  right  to  recover  (/). 

The  judgment  is  cither  against  the  ca>ual  ejector,  or  again<5t  tlie  tc 

(n)  Cro.  Eliz.  ISC.  (h,   Oyir.  «:  a    1  [^v.  334.  re)  I  T.  H  TOI.ilan/e 

«i)  3  Wil.  2-5   I  n.  ni.  2ra.  6T.  U.  It.».  Cl  W  sin    2:4.  (/;   Han.  -Uecl  205 

e.  8Ka,t,  a»7.  '.A)  I  Uiir.  II*  ■;    ilij.  Ub.  3C« 


408  Of  the  Damages   and  Costs  in       [Chap.  XIV. 

nant,  upon  a  verdict ;  the  former  is  generally  before,  the  latter  alway^ 
after  an  appearance  {a). 

The  casual  ejector  can  in  no  case  confess  a  verdict  {b). 

If  judgment  l)eiegu'arly  signed,  but  without  loss  of  trial,  it  may 
be  set  aside  on  payment  of  costs,  and  taking  notice  of  trial  (r). 

AVhen  the  landlord,  is  admitted  defendant  instead  of  the  tenant,  the 
judgment  is  entered  against  the  casual  ejector  with  a  stay  of  execution 
till  farther  order  :  if  the  landlord  be  afterwards  nonsuited  for  not  con- 
fessing lease,  See.  or  if  a  verdict  be  given  against  him  upon  the  trial, 
the  plaintiff  must  move  for  leave  to  take  out  execution  against  the 
casual  ejector  (r/) ;  and  the  day  of  shewing  cause  against  the  motion  is 
the  proper  time  for  the  landlord  to  make  his  stand  against  the  plaintiii's 
taking  out  execution  and  getting  into  possession.  It  has  however  been 
held,  t'lat  he  may  briig  a  writ  of  error,  which  would  be  a  sufficient 
reason  against  taking  out  execution  (^). 

The  plaintiff  cannot  have  judgment  against  the  casual  ejector,  till 
common  bail  is  filed. 

When  the  plaintiff  is  nonsuited  at  the  trial  for  want  of  the  defend- 
ant's confessing  lease,  ^-c.  he  is  not  entitled  to  sign  judgment  against 
the  casual  ejector,  till  the posfea  comes  in  on  the  day  in  bank  (/). 

Of  the  Damages. — The  damages  in  ejectment  are  merely  nominal, 
the  recovery  of  the  terra  being  the  object  of  the  action. 

Where  an  action  of  ejectment  and  an  action  of  assault  and  battery 
Avere  joined  in  the  same  writ,  after  verdict  it  was  moved  in  arrest  of 
judgment  ;  because  the  battery  was  joined  with  the  ejectment,  and  the 
damages  being  entire,  the  plaintiff  could  not  release  the  damages  in  the 
battery,  to  take  judgment,  and  the  execution  in  ejectment.  The  reason 
is,  that  where  the  damages  are  entire,  it  does  not  appear  that  the  plain- 
tiff recovered  by  any  title  in  ejectment ;  and  therefore  it  cannot  be  seen 
by  the  Court,  whether  those  two  actions  were  not  originally  joined,  in 
order  that  the  plaint  iff  might  have  a  recovery  in  one  to  save  his  costs  in 
the  other.  But  where  the  damages  are  given  severally,  it  appears  that 
the  pisPintiifhad  a  title  in  both  cases  ;  aud  therefore  if  he  relates  his 
damages  in  battery,  which  was  misjoined  with  the  ejectment,  there  is 
no  reason  why  he  should  not  take  his  judgment  in  ejectment:  for 
tliough  the  Court  must  judge  the  joinder  of  the  action  to  be  bad, 
where  it  appears  to  be  a  contrivance  to  save  costs,  which  is  the  mis- 
chief of  joining  different  actions;  yet  where  there  appears  to  be  good 
cause  in  both  cases,  the  joinder  of  the  action  is  cured  by  the  rt  lease, 
for  the  plaintiff  should  have  judgment  according  to  his  right  (^). 

(«;  Run.  Eject.  102.  (6)1  Str.  531.  (c)  Run.  Eject.  403. 

{</)  2  Bur.  7S7.  (t)  2  Str.  lD4l.  {/)  2  T.  R.  779. 

(S)  Run.  Eject.  144. 


8t((.  II.j  the  Action  of   I'ljc  rhni  nl,  -Sr.  100 

Of  the  Costs. — Inriilcnt  lo  llu;  juJ^incut  ;ut  llic  rnsls,  or  rxjirncts  of 
the  aclion,  which  are  1  lie  re  fore,  as  next  in  order  to  l)0  treated  of. 

If  the  tenant  (!o  not  appear,  and  judgment  he  consequently  entered 
ii  gainst  the  casual  ejector,  the  piaintillhasno  oilier  rem(dy  for  his  costs, 
tiiaii  l)y  his-  action  for  the  mesne  profits  ;  in  wliich  they  arc  rccoverahle 
ajTiitist  the  tenant,  as  consequential  damages  (a). 

luit  if  the  tenant  appear,  and  l»e  made  defendant,  under  the  usual 
terms  of  confessinL;;  lease,  ^r.  and  afterwards  at  the  trial,  refuses  to 
make  thit  confession,  he  is  liable,  upon  the  rule  liy  ^\hich  he  was  made 
tlefendant,  to  the  payment  of  costs  ;  which  if  not  paid,  an  attacliment 
lies  at^ainst  him  :  and  this  is  all  the  remedy  which  the  plaintill'has  for 
his  co^ts  if  he  !)e  notisuited  hy  the  defendant  not  confessinu;  lease,  !<<.c. 
If  the  tenant  appear,  confess  lease,  ^c.  and  a  verdict  he  given  against 
liim  upon  the  trial,  the  judgment  is  entered  against  the  tenant ;  on 
which  judgment  the  j)laintill'  may  takeout  execution,  as  in  ordinary 
cases  :  for  tliis  is  not  a  cfise  provided  for  by  the  rule  (//). 

Wlicrc  a  verdict  is  gi\en  for  the  defendant,  or  the  plaintilT  be  non- 
suited for  any  other  cause  than  that  of  not  confessing  lease,  t^v.  the 
defendant  must  tax  his  costs  on  \hc postra,  as  in  other  actions  ;  and  sue 
out  a  capias  ad  satis/ac  endinn  for  the  same  against  the  piaiiitifr,  which 
he  must  shew,  under  seal,  to  the  plaintiil's  lessor,  and  at  the  same  time 
serve  him  w  ith  a  copy  of  the  consent  rule  ;  then  if  the  lessor  being  re- 
quired, refused  to  pjiy  tiie  costs,  the  Court,  on  motion,  will  grant  an 
attachment  against  him  (r). 

Though  the  plaintilf  in  ejectment  be  but  nominal,  yet  if  he  be  not 
found,  or  be  not  aljle  to  j)ay  tiie  costs,  the  attorney  is  liable,  and  may 
be  committed  until  he  i)ay  them,  or  produce  a  sufficient  plaintili"  (f/). 

So,  if  a  stranger  carry  on  a  suit  in  another's  name,  who  has  title, 
and  yet  is  so  poor  that  he  cannot  pay  the  costs  ;  in  case  he  fail,  the 
Court,  on  aUidavit  of  the  circumstances,  w  ill  order  the  person  who  car- 
ried on  the  suit  to  pay  costs  to  the  defendant  {c). 

So,  where  baron  and  feme  were  lessors,  and  the  baron  died  after  en- 
tering into  the  rule,  the  feme  was  notwith'^tanding  lieltl  liable  to  the 
payment  of  costs  ;  because  they  were  to  be  paid  by  the  lessors  of  the 
plaintili",  and  l)oth  of  them  were  in  the  lease. 

If  the  plaintitr  has  a  verdict  in  ejectment,  and  costs  are  taxed,  and 
an  attachment  issues  for  non  paynunt  of  th«'m,  the  defendant  shall  not 
have  an  ejectment  against  the  plaintili",  in  the  same  Court,  ti.l  he  has 
paid  those  costs:  and  the  Courts  consider  an  ejeclment  in  another,  in 
the  sanie  light  as  a  former  ejectment  in  the  same  Court  ;  and  w  ill  stay 
proceedings  in  a  new  ejectment  till  the  costs  of  the  former  be  paid,  as 

n    Hun.  Fject  ^^^.  (6)  Ibid  415  (O  Ibid    «  •-  >'■    C  Mod- 309. 

'.  Hun.  Ejpct.  417 


410  Of  the  Execulion  hi  [Chap.  XIV. 

well  where  the  former  ejectment  was  in  another,  as  where  it  was  in  the 
same  Court. 

Proceedings  in  ejectment  were  stayed  by  tlie  Court  of  Common  Pleas, 
after  a  Jong  delay,  the  day  before  trial,  till  the  costs  of  a  former  eject- 
ment in  the  King's  Bench  were  paid  (a). 

So,  proceedings  were  stayed  in. an  ejectment  by  a  fraudulent  assignee 
of  an  insolvent  debtor,  till  the  costs  of  former  ejectments  brought  by 
the  debtor  himself  were  paid  (b). 

So,  proceedings  were  stayed  even  till  the  costs  were  paid  of  a  former 
ejectment,  in  w  hich  the  lessor  of  the  plaintiiT  never  entered  into  the  con- 
sent rule  (c). 

Yet  where  a  verdict  in  a  former  ejectment  had  been  for  the  plaintiiT, 
who  upon  the  defendant  bringing  the  action  against  him,  prayed  for 
costs  before  he  should  be  compelled  to  plead  to  the  new  action,  it  was 
denied,  because  the  verdict  being  for  him, he  had  no  vexation:  but  if 
it  had  been  against  him,  or  he  had  been  nonsuited,  he  should  not  have 
brought  another  action  before  the  costs  of  the  first  had  been  paid,  be- 
cause it  was  a  vexation  to  bring  a  new  action  (d). — No  new  ejectment, 
however,  can  be  brought  by  the  defendant  after  a  recovery  against 
him,  till  he  has  quitted  the  possession,  or  the  tenant  have  attorned  to 
the  plaintiiT  (r). 

Where  the  lessor  of  the  plaintifi'  was  in  custody  under  an  attachment 
for  non-payment  of  costs  in  a  former  ejectment,  and  brought  a  new 
ejectment  upon  the  same  demise,  the  Court  refused  to  stay  proceedings 
therein,  till  the  costs  of  the  former  should  be  paid  ( /). 

In  ejectment  against  several,  the  plaintiff  has  his  election  to  pay  costs 
to  which  of  the  defendants  he  pleases  (^).  But  if  the  defendants  fail, 
each  of  them  is  answerable  for  the  whole  costs  (/()• 

By  stat.  8  <*r  9  W.  3.  c.  11.  in  ejectment  against  several,  if  any  one 
or  more  is  acquitted  l)y  verdict,  he  shall  recover  his  costs  against  the 
plaintifl",  unless  the  Judge  shall  certify  inopcn  Court  that  there  was 
good  cause  for  maidng  such  person  a  defendant. 

This  being  an  action  of  trespass,  if  the  judge  before  whom  it  is  tried 
shall  certify  under  his  hand  on  the  back  of  the  record,  that  the  freehold 
or  title  of  the  land  came  chiefly  in  question,  though  the  damages  are 
under  40,s.  there  shall  be  the  full  costs.  This  is  enacted  by  stats.  43 
Eliz.  c.  6.     21  /.  1.  c.  16.  22  &  23  C.  2.  r.  9.  s.  136. 

Of  the  Execution. — Touching  the  execution  of  the  judgment,  as  the 
plaintiiT  in  ejectment  recovers  only  the  possession  of  the  property  in 
question,  execution  of  course  is  of  the  possession  only  (/). 

The  plaintiiT  having  judgment  to  recover  his  term,  may  enter  with- 

(a)  2ni.  R.  lisa  (b)  Ibid   llSl.  (c)  Iliid.  901.  (d)  4  Mod.  379. 

(c)  Salk.  258.     Kun.  Kjert.  4L'0.  C/V  Ibid.  (y)  1  Ptr.  5)fi. 

f  A)  Hull.  N  p.  335.  (i)  Riin.  Eject   i2i.     1  Bur.  90.  339- 


-f ft.  If.]  Ili(   yUllon  of  r/nclimnt  ;  iSV.  HI 

lit  suiiii;  out  ;i  writ  (jf  execution,  which  is  caUcd  an  hdhrrc  facias pos- 
M-suonrm  ;  for  uhcrc  the  land  recovered  is  certain,  the  recovcrer  may 
enter  at  his  own  peril,  aiid  the  assistance  of  the  slierifl'  is  only  to  prcy 
serve  the  peace  («). 

The  usual  and  re2;iilar  way  iiowever  is  to  make  out  a  w  ril  /lafitrc 
fdcins posst  ssiotion  ;  which  I)ein;;  engrossed,  signed,  and  sealed,  and  a 
precipe  being  made  out  for  it,  is  carried  to  the  ollicc  of  tljc  sheriiT,  who 
makes  oiit  a  warrant  thereon,  and  will  put  the  lessor  of  the  plaintilV  in 
jios'^ei^sion  (/;).  It  has  relation  to  the  Itstc  ;  therefore  if  tested  the  lait 
day  of  the  preceding  term,  may  be  sued  out  thougli  the  lessor  of  the 
plaintiii"  be  since  dead  (r). 

The  plaititiil'  must  take  care  not  to  take  out  execution  for  more  than 
lie  had  right  to  recover  :  and  in  order  that  the  siieriif  may  not  be  un- 
der any  dilliculty  in  executing  the  writ  of  possession,  the  practice //o;t'  is 
for  the  plaintilV  himself  not  merely  to  point  out  to  the  sheriil",  tiiat  of 
tvhich  he  is  to  dciivcr  him  possession,  in  execution  of  the  writ,  but  to 
take  possession  at  his  peril  of  that  only  to  which  he  has  title  ;  for  should 
he  take  more  than  he  has  recovered  and  shewn  title  to,  tlie  Court  will 
in  a  sinnmary  way,  set  it  riglit  {d). 

Therefore  ;  where  the  plaintiii"  in  ejectment,  as  tenant  in  common, 
recovered  possession  of  five-eights  of  a  cottage,  ^^  ith  the  appurtenan 
ces,  and  a  w  rit  of  possession  was  executed  by  the  shcriH',  a\  lio  turned 
the  tenant  out  of  possession  of  the  whole  and  locked  up  the  door,  as  ap 
peared  by  affidavit.  Curia. — This  wrong;  the  writ  ought  to  have 
l)ursued  the  verdict.  Let  there  be  a  rule  upon  the  sheriff,  and  tUe  les- 
sor of  the  plaintiff  to  restore  the  tenant  to  the  possession  of  three-eight 
parts  of  the  premises ;  otherwise  he  would  be  forced  to  bring  another 
ejectment  for  the  same  [(). 

If  there  are  several  messuages  in  jwssession  of  different  tenants,  the 
sheriff  must  go  to  all  their  houses  and  turn  them  out  :  the  delivery  of 
the  possession  of  one  tenement  in  the  name  of  all,  is  not  sufficient  (/). 

The  words  of  the  writ  being  (juod  habere  facias  possessionem^  therr 
must  be  a  full  and  actual  possession  given  by  the  sheriff,  and  conse- 
([uently  all  power  necessary  for  lliis  end  must  be  given  him;  if  there- 
fore the  recovery  be  of  a  house,  the  slieriff  may  justify  breaking  open 
the  door,  if  he  be  denied  entrance  by  the  tenant,  because  the  writ 
cannot  be  otherwise  executed  {if). 

If  the  officer  be  disturbed  in  the  execution  of  tlie  writ,  tlie  Court 
will,  on  affidavit  of  the  circumstances,  grant  an  attachVnent  against  the 
pirty  whether  he  be  the  defendant  or  a  slrani;er,  for  a  r<  cent  ouster  is 
a  contempt  ;  ami  the  process  is  not  understood  to  be  executed  coiiip!cte- 

fn )  ;  SrM.  Pmrt  202  <6)  IbiJ.  /"r)  4  Hiir    I'.Tl'  I-^  Hun.  Kj«ct.  4:^. 

Hur  nnB      l'iil«2?      J  Bit. 2673.  ff>3Will..  *»  .  f    i >M.  ftML  HKi 

-  Koll    Abr  ISO  (x)  5  Co.  91.  b. 


4J2  Of  the  Excculion,  SCc.  [Chap.  XI V. 

ly,  the  slierilf  and  his  ofiiccrs  are  gone,  and  the  plahitia.'  left  in  quiet 
possession  (a). 

If  therefore  the  sheriff  turns  out,  all  persons  he  can  find  in  the  house, 
and  gives  the  plahilili',  as  he  thinks,  quiet  possession,  and  after  the 
sherid'  is  gone,  some  persons  appear  to  be  lurking  in  the  house,  tliat  is 
no  good  execution,  and  the  plaintiif,  it  is  said,  shall  have  a  new  habere 
facias  possessionem  (^h). — The  new  writ  cannot  issue,  until  the  return 
of  the  first  be  expired  (c). 

An  attach jnent  va  as  granted  absolute  in  the  first  instance,  against  the 
tenant  in  possession,  on  affidavit  that  he  had  been  served  with  a  riile 
of  Court  made  absolute  for  delivering  up  the  possession,  and  had  re- 
fused so  to  do  (^d). 

The  law  seems,  however,  to  make  a  difference  where,  after  posses- 
sion given  either  on  the  habere  facias^  or  by  agreement  of  the  parties, 
the  plaintijf  is  turned  out  of  possession  by  the  defendant,  and  where 
by  a  stranger.  When  it  is  done  by  the  defendant  himself,  the  plaintiff 
may  have  either  a  new  habere  facias,  or  an  attachment,  because  the  de- 
fendant shall  never,  by  his  own  act,  keep  the  possession  which  the 
plaintiff  has  recovered  from  him  by  due  course  of  law.  But  where  a 
stranger  turns  the  plaintiff  out  of  possession,  after  execution  fully  exe- 
cuted, the  plaintiff  is  put  to  his  new  action  :  or  to  an  indictment  for 
the  forci})le  entry,  by  which  means  the  force  will  be  punished  — The 
reason  is,  that  the  title  was  never  tried  between  the  plaintiff  and  the 
stranger,  who  possibly  may  claim  the  land  by  a  title  paramount  to  that 
of  the  plaintiff,  or  he  may  come  in  under  him  ;  and  then  the  recovery 
and  execution  in  the  furnier  action  ought  not  to  hinder  the  stranger 
from  keeping  that  possession  to  which  he  may  have  a  right.  Were  the 
law  otherwise,  the  plaintiff  might,  by  virtue  of  a  new  habere  facias, 
turn  out  even  his  own  tenants  who  come  in  after  the  execution  is  exe- 
cuted, whereas  the  possession  was  given  him  only  against  the  de- 
fendant  in  the  action,  and  not  against  those  who  were  not  parties  to 
the  suit  (c). 

If  the  execution  go  to  the  sheriff  for  twenty  acres,  he  must  give 
twenty  acres,  according  to  the  common  estimation  of  the  country  where 
the  lands  lie  (/). 

As  the  plaintiff,  however,  is  to  shew  the  sheriff  the  premises  to 
■which  he  has  title  and  to  take  possession  rightly  at  his  peril,  such  a 
very  exact  description  is  not  necessary  in  this  action,  as  in  apnecipe. 
An  issue  has  baen  directed  to  try  whether  the  sheriff  had  delivered 
possession  properly,  according  to  the  recovery  (g). 

As  this  day,  the  practice  is,  for  the  plaintiff  to  give  the  sheriiT  secu- 

(a)  6  Mod.  27.     Salk.  322.  [b)  I.eoa.  t45.  {r]  Run.  Eject.  iZ5 

(d)  2  m.  a.  W)2.  (e)  I  Keb.  77;i  7SS.  (f)  rtoll  R  «10. 

'g)   I  liur.  MCG      5  Biir  !C7:». 


.#.4 


-. .  t.  rr.!  Of  Uii   mil  of  llnur.  11  :^ 

nty  to  itidtninify  liim  frnin  tlic  ilclViulaiil,  ami  llicn  fur  tlic  ^In  rili'  to 
give  execution  of  \\li;il  llio  plaiiiliU"  dimniuls  (<i). 

A  jiidgmctit  regularly  oMainod  was  set  aside,  and  the.  possession 
that  had  !)een  t^iven  iipoii  the  e\toulioii  urdcred  to  he  restored  :  l)iit 
the  lessor  of  the  plaint  ill'  (who  held  the  pos^es^ion)  ahpcondip,::,'.  the 
rule  became  hieflertual ;  u  hereupon  It  was  niovc<l  uii  behalf  of  the  hitc 
tenants,  for  a  ^ril  of  restitution  ;  \\hic!i  the  Court  awarded  accord- 
in-ly  (:>). 

If  tlte.  plaintiff  iie.;;lcct  to  sue  out  liis  writ  of  possession  fi)r  a  year 
and  a  day  alter  jiid^ment,  he  niusl  revive, the jud^'meiit  by  srirr facias^ 
as  in  other^ases ;  else  tlie  Court  u  ill  award  a  reslitntioii  liunrr  rrroni(c 
cniaiutvil  :  iniloss  the  stay  of  execution  be  by  coniidit  of  the  j)arti»s  for 
tlic  yeaj\not  for  less  tiujc,  com.  sent,  or  tJie  defendant  brings  error  and 

ifterwards  noa'^uiled  (<). 

But  if  the  delay  be  l»y  injiniclion  of  the  Court  of  Chancery  there 
must  bcH  scire  facias  ;  for  an  injunction  not  being  a  matter  of  record, 
a  Court  of  Jaw  will  not  take  notice  of  it ;  unless  the  parly  has  taken 
Oid  execution  within  tiie  year,  and  continueil  it  down  by  vicccomcs  7ton 
'mfsit  brcvc,  wliich  may  be  done  without  a  breach  ((/). 

If  theplaintiflfdie  within  a  year  and  a  day».his.executors  cannot  take 
out  execution  witliout  a  sdrc  facias  ;  for  tliey  are  not  parties  to  the 
judgment :  though  it"  execution  has  been  regularly  sued  out  in  the  life- 
time of  tlic  testator,  the  shi  i;iiTmay  execute  it  after  his  deatii ;  because 
the  authority  is  from  the  Court,  and  not  froju  the  party  (<-)• 

If  after  judgment  and  before  execution,  the  defendant  in  ejectment 
dies,  and  a  scire  facias  goes,  it  nmst  be  against  the  terre-tenants  of  the 
lauil  (iiid  the  heir  may  come  in  as  terre-tenant),  and  nut  against  the 
executor,  \\  ithout  iiuiiinj;  him  terre-tenant  (/). 

^V'here  the  landlord  is  admitted  to  defi  ml  on  the  tenant'^"  non-appear- 
ance, and  judgment  is  thereupon  signed  against  the  casual  ejector,  w  itli 
a  stay  of  exi'cution  till  lurther  order,  the  lessor  of  the  j;!aintill'  having 
succeeded  must  apply  to  the  Court  for  leave  to  take  out  execution  ;  and 
in  such  case,  if  a  w  rit  of  error  be  brought  by  the  landlord,  it  may  be 
shewn  for  cause,  and  will  be  a  sufficient  reason,  against  taking  put  exe- 
euliou  :  I)ut  if  the  landlord  omit  the  opportunity  of  shewin.;  it  for 
cause,  the  execution  is  regular,  and  cannot  bo  s*.'t  aside  (:;). 

Of  l/tc  IViit  of  Liroi. 

By  the  consent  rule,  as  has  been  before  ohscned,  the  <lef«ndant  im- 
dertakes  to  appear  and  receive  a  declaration :  the  necessity,  therefore,  of 

(a)  Rim.  Eject.  431.  (fc)  2  Fell   I'rtct  HOI.  (r,  _•  I  J  n»)iu.  808 

S«1K.*258  i.  c.  6  .M«d.  aim.  2  Sell.  I'rtci.  SfM-  (J)  J  Sir  :.0I.  ^•a.  n?a  •  t  .\io4.  IfJ*- 

(«)  Hun.  Kject  4:i9.  Cf)  2  E«ll    Pnct.  'Mi.     Cfv  '  ir  ^.'j   Jl .. 

(fi  Tidd'a  I'rtct.  '.05. 

oJ. 


414  Of  the  Writ  of  Error.  [Chap.  XIV. 

an  original  writ,  if  the  proceedings  are  in  the  Common  Pleas,  is  su- 
perseded ;  because  as  the  tenant  is  to  appear  and  receive  a  declaration, 
ht  cannot  take  advantage  of  the  m  ant  of  an  original,  unless  in  a  writ  of 
error  :  but  w  lien  a  writ  of  error  is  brought,  the  plaintiif  must  file  an 
original,  unless  it  be  after  verdict,  when  it  is  helped  by  stat.  38  Eliz. 
c.  14.  (a). 

As  in  the  Common  Pleas  there  is  no  need  of  an  original  (whiqh  also 
is  the  ease  in  the  King's  Bench  when  the  proceedings  are  by  original,) 
so  in  the  King's  Bench  when  the  proceedings  are  by  bill,  there  is  no 
necessity  for  a  latitat,  or  bill  of  ejectment :  but  the  party  must  file  hail 
before  he  can  proceed.  He  must  also  file  a  bill  of  ejectment  besides  the 
plea  roll,  in  case  a  writ  of  error  be  brought,  before  errors  are  assigned. 
The  reason  is,  that  the  Court  has  no  authority  to  proceed  in  ejectment 
by  bill,  unless  the  defendant  be  in. custody  ;  therefore,  by  the  rule,  bail 
is  ordered  to  be  filed,  that  the  Court  may  have  authority  to  proceed  (o.) 
The  casual  ejector  cannot  bring  error,,  being  a  mere  nominal  person  ; 
that  writ  therefore  can  only  he  brought  after  the  defendant  has  ap- 
peared, and  confessed  lease,  entry,  and  ouster  (c). 

So,  if  the  landlord  be  permitted  to  defend,  a  writ  of  error  cannot  is- 
sue in  the  name  of  the  casual  ejector  (d). 

But  on  a  writ  of  error  from  an  inferior  Court,  in  the  name  of  the 
casual  ejector,  the  Court  m  ill  not  order  a  ?wnpros.  to  be  entered,  though 
his  release  of  errors  be  shewn ;  because  inferior  Courts  are  not  com- 
petent to  proceed,  as  before  observed,  by  a  rule  confessing  lease, 
^"c  {e).  ,  .  '  ,  - 

So,  if  an  infant  be  tenant  in  possession,  and  judgment  be  against  the 
casual  ejector  ;  because  no  laches  is  imputable  to  an  infant  (/'). 

The  plaintiff  having  brought  a  writ  of  error  in  Parliament,  the 
Court  obliged  him  to  enter  into  a  rule  not  to  commit  waste  or  de- 
struction during  the  pendency  of  the  writ.  The  defendant  did  not  op- 
pose it;  and  also  justified  (to  400/.)  (g). 

By  stat.  IG  ^  17  C.  2.  c.  8.  5.  7,  it  is  enacted,  That  no  execution 
shall  be  stayed  by  writ  of  error  upon  any  judgment  after  verdict  in 
ejectment,  unless  the  plaint iif  in  error  shall  become  bound  in  a  reason- 
able sum  to  pay  the  piaintiiT  in  ejectment  all  such  costs,  damages,  and 
sums  of  money,  as  shall  be  awarded  to  such  plaintiff  upon  judgment 
being  affirmed,  or  on  a  nonsuit,  or  discontinuance  had  ;  and  in  case  of 
aflirmance,  discontinuance,  or  nonsuit,  the  Court  may  issue  a  writ  to 
enquire  as  well  of  the  mesne  profits,  as  of  the  damages  by  any  waste 
committed  after  the  first  judgment,  and  are  therefore  to  give  judgment, 
and  award  execution  for  the  same,  and  also  for  costs  of  suit. 

(a;  Run.  Eject. 204.  (t;  U.iJ.  (t)  2  Sell.  Pract.  205.    2Bur.757. 

((/;  U.id.  (c.l  Run.  Ejtct.  .11'!.  'f)1\V\i\.  ig-}  3Bur  J823. 


>vv{.  II.]  O/'  l/i(    Adiitn  of  lyn'titmit,  \i 


11 


'J'hi.s  "  rcasoiialjlc  sum"  is  i^ciicrilly  doiihlc  llio  rent. 

Ln  Irr  this  statiilc  the  tlefi'Mil.inl  is  iutitlcjl  l>y  law  to  his  writ  t.l  t  r- 
ror,  ir  he  oilers  to  become  hound  a?  the  statute  tlircct;?. 

Tlurcforc,  where  the  les^^.r  of  the  plaim  iff  swore  that  t!»e  drfeiulant 
was  insolvent,  and  also,  that  ho,  the  lessor,  h>J  a  mortij:a-jre  tipnn  the 
land  to  more  than  it  was  worth,  ytt  the  Court  held  that  the  deliiidant 
was  entitled  to  his  writ  of  error,  he  becomin!;  bound  in  double  th<; 
rent  (,i). 

Nothing  shall  licassiijnt'd  f.n* error  tliil  will  nn'  •  i'  v^-<'..^.■y^^■  f  .  „, 
agiin  into  the  title  of  the  prcmr^cs  (A). 

Of  the  Action  of  Kjvctmcnt  nhcrc  the  Possission  is  va- 
cant  :—lVli(rv  a  Curjioralioit  is  Lessor  of  the  PIiiinH[f : 
— and  n  here  llu  Adion  is-  commenced  in  an  in/aior 
Court. 

As  the  old  nif'thod  of  procecdin^^  in  this  action,  by  scaling  a  lease 
on  tlic  premises,  must  still  1*;.  resorted  to  in  these  cases,  we  have 
thunglit  proi)er  to  luticc  them  as  a  detached  article. 

If  the  premises,  the  possession  of  which  the  plaintiff  seeks  to 
recover,  be  empty,  no  declaration  of  course  can  be  delivered  or  affidavit 
made  of  the  delivery  of  it,  and  consequently  the  Court  cannot  proceed 
to  give  judi,'mcnt  against  the  casual  ejector  (r). — In  such  case  there- 
fore the  old  way  of  proceetliiiii^  nitisl  be  still  pursued,  except  in  the 
single  instance  of  landlord  an4  tenant,  provided  for  by  stat.  4  G.  2.  of 
A\  hich  hereafter  (d). 

This  is  done  Ijy  entering  on  the  premises,  and  actually  s;'a!ing  a  lease 
thereon,  either  in  person  or  by  attorney. 

If  the  former  method  is  preferred,  the  proceeding  is  tlius : 

J.  (the  person  claiming  title,)  must  go  upon  the  land  before  the 
essoin  day  of  the  term,  and  there  s:ial  ami  deliver  a  lease  to  Zi.  (any 
friend  of  his,  as  tenant ;)  and  at  the  same  time  deliver  him  possession. 
This  being  done,  get  C.  (any  other  fricml)  to  go  ujxni  liie  prentises, 
and  turn  out  Vi.  the  tenant,  by  thrusting  him  oil'  tlie  premi.vs,  and 
■whilst  he  continue?  there  serve  him  with  a  declaration  in  ejectmmt,  in 
uhich  make  ii.  the  tenant  plainfiff,  ../.  (the  person  claiming  title)  tiie 
lcsst)r,  and  r.  the  actual  ejector)  the  defendant,  and  declare  on  the 
demise  in  the  lease  and  subscribe  a  notice  to  appear  (<  ) . 

The  declaration  is  the  same  as  iifjal,  only  the  real  pcrs  nis  arc  made 
parties,  instead  of  fictitious  names  (/). 

In  order  to  get  judgment  in  the  Court  of  K'n  ■'   T.cnch,  an  aflfidavit 

,'n)  4  Bur.  CiOl  ,'/,;  Mob    .V  ,  ^  n    r,   V  ■....  ■  ;    "  S.  .1    Prirt   2!^. 

V«;Iui«J  (/,  IhiU.  -Ml. 


416  Of  the  Aclion  of  Ejectment         [Chap.  XIV. 

must  be  made  of  sealing  the  lease,  and  of  the  ouster  hy  defendant, 
and  of  all  the  facts.  This  is  indorsed  to  move  for  judgment  against 
the  casual  ejector,  and  unless  defendant  appear  and  enter  into  the 
common  rule,  judgment  may  be  sighed  as  on  a  common  ejectment. — 
In  the  Common  Pleas,  there  is  no  need  of  any  affidavit,  nor  any  motion 
for  judgment,  but  on  the  first  day  of  term,  give  a  rule  to  plead  as  in 
common  actions,  and  if  no  appearance  and  plea,  at  the  expiration  of 
the  rule,  sign  judgment  {ft). 

If  the  landlord,  or  person  claiming  title,  does  not  wish  to  enter 
himself  and  seal  the  lease,  he  may  do  it  by  attorney,  and  the  pro- 
ceedings are  just  the  same;  the  attorney  acting  as  the  principal 
landlord  (b). 

To  warrant  the  above  proceedings,  the  premises  must  be  vacant; 
they  must  be  wholly  deserted  by  the.' tenant,  and  the  lessor  of  the 
plaintiiT  not  be  able  to  find  out  where  the  tenant  is  to  serve  him  w  ith 
an  ejectment. 

Therefore,  where  the  lessee  of  a  pul)lic-housc  took  another  and 
removed  his  goods  and  family,  but  left  beer  in  the  cellar  ;  rent  being 
in  arrear,  the  landlord  sealed  a  lease  as  on  a  vacant  possession, 
delivered  an  ejectment,  and  signed  judgment,  it  was  set  aside,  the 
lessee  still  continuing  in  possession :  and  a  case  was  mentioned,  where 
leaving  hay  in  a  barn  at  Jlendon,  was  held  to  be  keeping  possession. 
It  further  appeared  in  this  case,  that  the  attorney  for  the  plaintiiT  knew 
whither  the  lessee  removed,  and  uiight  have  served  him  personally, 
which  could  not  be  done  upon  the  premises. — So,  in  tlie  case  of  a 
renting  ground,  to  ^^hich  there  is  no  house  or  barn,  if  it  be  knoM n 
where  the  tenant  lives,  he  must  be  served  f  r). 

In  cases  of  a  vacant  possession,  no  person  claiming  title  will  be  let 
in  by  the  Courts  to  defend,  but  he  that  can  first  seal  a  lease  on  the 
premises  must  obtain  possession.  The  person  therefore  claiming 
title  must  resort  to  his  new  ejectment  (d). 

But  it  is  said  that  any  person  claiming  title  to  the  prejnises  and 
who  is  usually  admitted  by  the  Court,  may  Mith  leave^appear  and  en- 
ter into  the  common  rule  upon  motion  made  for  that  purpose  (c). 
But  quaarc  noM  ? 

Ejectment  hjj  a  Corporation. — When  a  corporation  is  lessor  of  the' 
plaintiff,  they  should  regularly  CACcute  a  letter  of  attorney  authorizing 
some  person  to  enter  and  seal  a  lease  on  the  land:  and  a  corporation 
cannot  make  an  attorney  or  [)ailiir  but  by  deed,  nor  appear  but  by 
making  a  proper  person  their  attorney  by  deed. 

As  to  whether  the  lease  on  which  they  declare  need  be  by  deed, 
it  seems  immaterial :  for  where  the  declaration  stated  the  lease  to  have 

(a)  2  Srll.  Piact.  214.  (h)  Ibid.  (e)         S  Str.  106.1,  (rf)  Bull.  N.  P.  05. 

(e)  Imp.  Pract.  K.  B.  637.  2  Sell.  Pract.  217. 


,,(■ 


t.  n.]  irJurc  the  Possession  is  vacant.  417 


bccJi  inade  by  tlic  plain! ifT  under  the  common  seal  of  tlic  corporation, 
it  was  ol)jict(cl  thai  the  lease  oiii^ht  to  he  proved  :  huttheoljiectioij  was 
over-r.iil((l  hy  Lord  luui/on,  who  observed  that,  by  rommon  rule  and 
>;])l)carancc,  the  lease  was  admitted  to  be  ;ls  stated  (a). 

if  a  corimratiuu  be  ag;grci;ale  of  many,  they  may  s(  t  fortli  the  demise, 
III  the  declaration  witlioiit  mentionin;^  the  Christi.ui  names  of  those  who 
omposc  it;  I)ut  if  the  corporation  be  sole,  the  name  of  baptism  must 
ic  inserted  ;  as  if  the  demise  be  by  a  bishop  (/<)• 

Proctcdinrs  in  dii  infirhr  Court. — Where  the  ])r<)credini;s  arc  in  an 
inferior  Court,  the  plaint  ill"  must  proceed  by  actually  sealing  a  lease  on 
l!ie  premises,  and  tlic  defendant  tries  the  title  in  the  name  of  the  (  ms.->  d 
ejector,  to  save  expense  :  for  inferior  Courts  are  not  competent  to 
make  rules  to  confess  lease,  entry  and  ouster,  and  if  they  uere,  have  no 
l)o\ver  to  enforce  obcdieoce, to  them.  It  seems  therefore,  that  if  the 
tlcfendanl  in  an  inferior  Cotirt  enter  into  a  rule  to  confess  lease,  A''f. 
xn^X  the  cause  be  removed  by  habeas  corpus,  and  the  Judqe  of  the  in- 
ferior Court  grant  an  attachnunt  against  the  defendant  for  disobedience 
to  the  rule,  the  superior  Court  will  i^rant  an  attachment  against  the 
Judge  for  exceeding  his  authority  and  obstructing  the  course  of  the 
suj)crior  Court  (r). 

If  an  habeas  corpus  be  brought  to  remove  a  cause  in  ejectment  out  «if 
an  inferior  Court,  the  lands  lying  within  their  jurisdiction,  and  the 
lessor  of  the  plaint  ill"  seal  a  lease  on  the  premises,  the  Courts  above 
^11  grant  aproccdi'ndo;  because  the  title  to  tlie  land  is  local,  and  there- 
rare  properly  within  the  jurisdiction  of  the  Court  below,  where,  if  it 
proceed  regularly,  it  will  not  be  prohibited  :  but  if  the  lessor  has 
not  sealed  a  lease  on  the  premises,  the  Courts  above  will  not  grant  a 
prcccdcmlo  (d). 

So,  if  an  ejcrtment  be  commenced  in  an  inferior  Court,  and  an 
habeas  corpus  be  brought  to  remove  it,  and  the  plaintilT  in  ejectment 
declares  airainst  the  castial  ejector  :  there  may  be  a  rule  to  confess  lease, 
AV.  as  if  he  had  originally  declared  in  the  Court  above,  and  the  Court 
will  not  v;rM]i  a. frroceiUndo  (r). 

If  the  lands  lie  partly  within  the  cinque  porl,  an.!  partly  without, 
the  deCunlant  cannot  plc-ail  the  jurisdiction  of  the  rincpie  ports,  al)0Ve  ; 
for  though  the  land  be  local,  yet  the  dcjuisc  is  transitory,  and  lria!>Ie 
any  where:  and  therefore  though  the  plaintill'may  lay  his  action  f^r 
that  vhich  lies  withiJi  an  inferior  jurisdiction  in  tho  Court  IhiIow,  if 
he  take  prop'M-  measures  for  the  purpose,  yet  if  he  will  proceed  in 
a  superior  Court,  as  the  demise  is  transitory,  the  dcf'-ndaut  cannot 
rfop  his  proceeding,  because  those  Courts  have  competent  juri!:dic- 
tion  (/). 

n;  H'ln.  Eject  WO.  (Ir)  Jbi.1.  ^f"^  Ruo   E>ct    J5I   15:  ibij    151. 

!')  Hid.  f)  111..'  '■;: 


418  Of  the  Action  for  Mesne  Profits.     [Chap.  XIV. 


Section  III.     Of  the  Action  for  Mesne  Profits. 

An  ejectment  being  a  feigned  action,  brought  against  a  nominal 
defendant,  and  generally  on  a  supposed  ouster,  is  not  a  proper 
action  for  mesne  profits,  the  action  for  which  is  wholly  dependent 
upon  facts ;  being  brought  against  the  real  tenant,  for  profits  which  he 
has  actually  received.  In  the  one  case,  therefore,  the  damages  are 
merely  nominal ;  in  the  other,  they  are  such  as  the  plaintiif  has  sus- 
tnined  by  a  real  injury;  and  the  fiction  in  the  former,  does  not,  in 
any  manner,  affect  the  latter  (a).  The  verdict  in  ejectment  having,  in 
fact,  established  the  right  of  the  plaintiff  from  the  time  that  his  title 
accrued,  the  defendant  is  a  trespasser,  and  the  plaintiff  is  entitled  to 
recover  from  him  damages  for  his  unjust  possession,  equal  to  the 
value  of  the  lands  during  that  time  ;  though  this  point  is  not  settled, 
but  the  quantum  depends  upon  circumstances  (b). 

This  action,  therefore,  results  from  the  recovery  in  ejectment :  it  is 
an  action  of  trespass  vi  d  armis,  brought  by  the  lessor  of  the  plaintiff? 
in  his  own  name,  or  in  the  name  of  the  nominal  lessee  (for  it  may  be 
brought  in  that  of  either)  against  the  tenant  in  possession,  to  recover 
the  value  of  profits  unjustly  received  by  the  latter,  in  consequence  of 
the  ouster  complained  of  in  the  ejectment  (c). — It  is  usually  brought 
by  the  lessor  of  the  plaintiff  in  his  own  name,  and  in  that  case,  on 
proving  a  good  title  in  himself  and  an  actual  ouster  and  perceptiomM 
profits  by  the  defendant  antecedent  to  the  demise  and  ouster  in  eject- 
ment, he  Mill  recover  damages  for  those  profits:  they  are  seldom, 
however,  an  object  of  litigation,  as  the  demise  and  ouster  are  generally 
laid  soon  after  the  time  when  the  lessor's  title  accrued. 

But  the  plaintiff  is  not  bound  to  claim  the  mesne  profits,  only  from 
the  time  of  the  demise  ;  for  if  he  proves  his  title  to  have  accrued  before 
that  time,  and  proves  the  defendant  to  have  been  longer  in  possession, 
he  shall  recover  antecedent  profits  (jl). 

In  such  case,  however,  the  defendant  will  be  at  liberty  to  con- 
trovert the  title,  v\hich  he  cannot  do  in  case  the  plaintiff  do  not  go  for 
more  time  than  is  contained  in  the  demise ;  because  being  tenant  in 
possession,  he  must  have  been  served  with  the  declaration,  and  there- 
fore the  record  is  against  liim  conclusive  evidence  of  the  title ;  but 
against  a  precedent  occupier  the  record  is  no  evidence,  and  therefore 
against  such  an  one  it  is  necessary  for  the  plaintiff'  to  prove  his  title, 
and  also  to  provfe  an  actual  entry,  for  trespass  being  a  possessory  action, 
cannot  be  maintained  without  it  (c). 

(a)  Run.  Eject.  438.  (61  3  Bl.  Com.  SOj.  (c)  Run.  Eject.  438. 

{<i)  Bull.  ^'.  p.  .87.  (0  Ibid. 


Sect.  III.]     Of  the  Action  for  Mesne  Profits.  410 

Vet  as  to  actual  entry,  it  may  admit  of  douht,  vliat  proof  is  j-ufTi- 
<  ient  (ji). — It  has  htcn  said  that  the  plainliJl  is  cnlitk'd  to  rtcovtr  the 
mesne  profits  only  from  the  time  he  can  prove  lumself  to  have  heen  in 
possession,  and  tliut  tljcreforo  if  a  man  make  liis  will  and  die,  the 
devisee  uill  iiot  be  entitled  to  the  profits  till  he  has  made  an  actual 
entry;  for  tiiat  none  c^n  have  an  action  fi>r  mesne  profiis  unless  in 
case  of  actual  entry  an<l  posses-sion  (li).  Others  have  holden  (r),  that 
when  once  he  has  made  an  actual  entry,  that  will  have  relation  to  the 
time  his  title  accrued,  so  as  to  entitle  him  to  recover  the  mesne  profits 
from  tliat  time;  and  they  say,  that  if  the  law  were  not  so,  the  Courts 
woidd  never  have  suHered  plahitills  in  ejectments  to  lay  their  demises 
back  in  the  mamier  they  now  do,  and  l)y  that  means  entitle  tiienistlves 
to  recover  prolits,  to  which  they  would  not  otherwise  he  entitled: 
beside,  the  Court  will  intend  every  thing  possible  against  the  de- 
fendant ((/). 

SuppDsin;;,  however,  that  a  subsequent  entry  has  relation  to  the 
time  that  the  plaintiff's  title  accrued,  yet  certainly  the  defentlant  may 
j)lead  the  statute  of  limitations,  and  by  that  means  protect  himself 
from  all  but  the  last  six  years  (r). 

If  one  tenant  in  common  recover  in  ejectment  against  the  other,  lie 
may  maintain  trespass  for  the  mesne  [)rofi1s  (/). 

Any  one  in  possession  of  the  premises  after  a  recovery  of  them  l)y 
action  of  ejectment  is  a  trespasser  and  as  such  liable  to  damages,  and 
he  cannot  cover  himself  under  the  licence  of  the  defendant  in  ejectr 
ment,  for  no  man  can  license  another  to  do  an  illegal  act.     In  tlii«  case, 
ScUoi',  Serj.  mo\ed  for  a  new  trial.     It  appeared  tiiat  the  plaint iil  l)y 
an  action  of  ejectment  had  evicted  one  Mitchcl  (who  had  been  a  tciiant 
of  his  imder  an  agreement  f)r  a  lease),  aud  had  since  brought  an  ac- 
tion against  the  present  defendant,  in  which  he  had  declared  first  in 
tresjxiss  quare  dausurn  /regit,  and  in  another  c^unt  for  money  had  and 
received,  being  in  fact  for  the  mesne  profits.    Sclloji  for  tUc  present  de 
fendant  contended,  that  his  client  being  in  possession  merely  as  the 
agent  of  Mitchcl,  who  was  in  prison,  was  not  liable  to  any  action  of 
trespass  nor  for  the  mesne  profits,  Mitch^  I  himself  being  the  only  parly 
to  be  looked  to.      liul  Lord  Kmi/on  observed,  that  the  plaintiii  having 
recovered  in  ejectment  against  his  tenant,  any  other  party  in  \n)i.i>ct- 
sion  was  liable  to  be  deemed  a  trespasser,  and  that,  in  action  of  trcs- 
pass,  tlamages  ouirht  to  be  given,  though  not  amounting  quite  to  the 
jncsne  profits.     Rule  refused  K'). 

If  the  action  be  brought  in  tlie  name  of  the  nominal  plaintiff,  the 
Court,  on  application,  will  stay  the  suit  till  security  be  givrn  for  an- 
swering the  costr;  ;  but  will  not  permit  such  a  plainliA"  to  release  the 

(o)  niiU.  N     P    87.         (6)  1  Vm.  241  (pj   ■.Mod   D*.        (4)%   W  ;< 

COsWils    ISI.       .'r)  r.intI»iton«  T    Porter,  K   »   M.  T    \S9    rt   :i.  W 


420  Of  the  Action  for  Mesne  Profils.     [Cliap.  XIF, 

action  ;  his  release  therefore  has  been  set  aside  as  a  contempt  of  Court : 
and  there  is  no  distinction  between  a  judgment  in  ejectment  upon  a 
rerdict,  or  by  defiult ;  for  in  the  one  case,  the  rlt^ht  of  the  plaintiiT 
is  tried  and  determined  against  the  defendant,  and  in  the  other  it  is 
confessed  («). 

This  action  may  be  brought  pendhig  a  writ  of  error  in  ejectment 
and  theplainti.Tmay  proceed  to  ascertain  his  damages,  and  sign  his 
judgment  ;  but  the  Court  will  stay  execution  till  the  writ  of  error  be 
determined  (^). 

If  the  defendant  bring  a  writ  of  error  on  the  verdict  against  him 
in  ejectment,  and  enter  into  a  recognizance  pursuant  to  the  statute 
IG  iSi  17  C.  2.  c.  8.  to  pay  costs,  the  plaintiff  on  judgment  in  his 
favour  on  the  writ  of  error,  need  not  bring  a.  scire  facias  or  action  of 
del)t  on  the  recognizance,  but  may  sue  out  an  elegit- ot  writ  of  enquiry, 
to  recover  the  mesne  profits  since  the  first  judgment  in  ejectment  (r).. 

The  defendant  in  this  action  may  be  held  to  ba'il. 

The  declaration  in  this  action  for  mesne  profits  must  expressly  state 
the  several  parcels  of  land,  &:c.  from  which  the  profits  arose,  or  the 
defendant  may  plead  the  common  bar  (fi). 

The  defects  in  a  declaration  in  an  action  for  mesne  profits,  in  not 
stating  any  time  when  the  defendant  broke  and  entered  the  messuage, 
/re.  and  ejected  the  plaintiff  from  the  occupation  of  it ;  and  in  stating 
only  that  the  defendant  kept  and  continued  the  plaintiff  so  ejected  for 
a  long  space  of  time,  without  stating  hovv^  long,  are  cured  by  the  opera- 
tion of  the  stat.  4.  Ann.  c.  16.  after  judg-ment  by  default,  and  a  writ 
of  inquiry  of  damages  executed,  so  that  no  objection  can  be  taken  in 
arrest  of  final  judgment  for  such  defect  in  form  (e). 

In  trespass  for  the  mesne  profits  against  the  tenant  in  possession  af- 
ter a  recovery  in  ejectment  by  default  against  the  casual  ejector,  the 
tenant  cannot  pay  the  money  into  Court,  for  the  action  is  for  a  tortious 
occupation  from  the  time  the  tenant  had  notice  of  the  title  of  the  lessor 
of  the  plaintiff  (/). 

In  trespass  against  the  tenant  in  possession  for  mesne  pro£ts,  either 
by  the  lessor  or  the  nominal  plaintiff,  after  recovery  of  ejectment  the 
plaintiff  need  not  prove  a  title ;  but  it  is  sufiicient  to  produce  the  judg- 
ment in  ejectment  and  the  writ  of  possession  executed,  and  to  prove 
the  value  of  the  profits,  aud  thereupon  he  shall  recover  from  the  time 
of  the  demise  laid  in  the  declaration  (g). 

But  if  the  judgment  has  been  against  the  casual  ejector,  and  no  writ 
of  possession  executed,  the  defendant  in  possession  may  controvert  the 
title,  if  he  has  not  been  made  a  defendant  in  the  ejectment  and  had.  a 

(a)  Run.  Eject.  439.  BuU.  N:  P.  89.  (6)  2  Sell.  Pract.  22G.  (c)  Ibid, 

(li,  2Cron)p.  Fract.  223.  {e)  13  Kaet,  407.  (y}2VVil3.  11a. 

(gj  Gull.  N.  P.  87.     3  WiU.  121.      1  T.  K.  387. 


N(  (.  III.)         Of  lilt  Action  for  Misnr  J-'ro/ils.  ii'i 

vcriUct  at;uiiist  lain,  aiu!  flicrilDrt;  the  rccoviry  in  ejectment  is  nut 
against  liiiu  conclusive  evidence  (a). 

In  an  action  for  mesne  profits  for  one  year,  Ww  declaration  contained 
other  counts  for  destroy  ini;  fences,  to  which  a  ju.'-lilicalion  was  pleaded, 
and  upon  a  new  assignment,  the  general  i.-siie.  An  examined  copy  of 
the  judgment  in  ejectment  was  proved.  The  trespass  in  respect  to  the 
fences  was  also  proved,  but  the  Judge  (Jiinming-ton,  Serjt.)  beini?  of 
opinion,  that  as  it  was  committed  while  the  defendant  was  in  possession 
as  1(  iiant,  the  action  was  ini'-conceiNcd  for  tliat  part,  the  jury  by  his  di- 
rection gave  no  damagrs  in  respect  thereof.  —  A  rule  f(;r  a  new  trial  was 
oblained  on  the  ground  of  the  trespass  having  Ix'cn  coiuniilted  after  the 
defendant  had  ceased  to  be  tenant  to  the  plaii;tiJVand  alter  the  ncovery 
in  ejectment ;  but  that  not  appearini:;  to  be  the  fact,  from  the  report  as 
it  was  read  from  the  Judge's  note,  the  rule  for  a  new  trial  was  dis- 
charged  (A*). 

A  recovery  in  ejectment  against  the  wife  cannot  be  given  in  evidence 
against  the  husband  and  w  ife  for  mesne  profits :  for  in  such  case  there 
is  no  evidence  of  tlie  trespass  but  the  jiuliinunt  in  ejectment ;  and  the 
■wife's  confession  of  a  trespass  committed  ijy  her  cannot  be  given  in 
evidence  to  aflect  the  husband  in  an  action  in  whicji  he  is  liable  for  the 
damages  and  costs  (c). 

liankruptcy  is  no  plea  in  bar  to  an  action  for  mesne  profits ;  for  the 
damages  occasioned  by  the  tort  are  uncertain  (J), 

Where,  after  a  recovery  in  ejectment  and  before  an  action  of  trespass 
for  nicsne  profits,  the  defendant  became  a  bankrupt,  and  the  jury  did 
not  uickule  the  costs  of  the  ejectment  in  their  verdict  in  executing  a 
Avrit  of  enquiry  in  tiic  action  for  mesne  profits,  the  Court  refused  to  set 
aside  the  itiquii«itien^lKCjrir6§  the  plaintiil  mi^rlit  have  proved  the  costs 
as  a  debt  un(i#|||||j|4li'fen(.t^lW^C}jminission  of  bankrupt  (<•). 

Touching  {fl^-^l^ <g|i  <jX'lifliUa;^fi|^gcn  by  the  jury  in  this  action, 
they  are  not  .to  htWfSK^  tlie  amount  o/the  rent,  but  may  give  r.r- 
tra  damages :  ind^cd'^pr  times  tlie  value  of  the  mesne  profits  have 
been  known  to  be  given  in  tiiis  sort  of  action  of  trespass  (/)  :  and  after 
judgment,  by  default,  the  costs  in  ejectment  being  recoverable  are  usu- 
ally drr'arcd  for  as  damages  in  this  action  for  mesne  iMMftts  (,.7-). 

-  The  plaintiil  can  recover  no  Tulher  costs  in  this  action  than  were 
taxed  in  the  ejectment,  if  it  wue  regularly  defended  :  but  it  is  other- 
wise if  judgment  was  against  the  casual  ejector  (//). 

(a)  2  Sit.  960.  (fc;  M.  T.  41  fi.  X     T's.  ."\IS«.  (;)  7  T.  '.1    ) 

(d)  uouj. 584.  («)2T.n.2*i.  r/;.TWUij   . 

(e)  Uult  N  V.  it  ;*  }1  Kjj..  b.  acs. 

.55 


422  Of  a  second  Action  of  Ejectment.      [Chap.  XIY. 

Section  W.     Of  a  second  Action  of  Ejectment. 

A  juilgincnt  in  ejectment,  it  may  he  remembered,  is  a  mere  reco- 
very of  the  i)ossession  vvilhout  prejudice  to  the  right.  It,  therefore,  is 
not  final  between  the  parlies  so  as  to  protect  either  the  defendant  or 
plaintiff  (if  he  succeeds)  from  any  further  suit ;  for  the  same  plaintiif, 
if  lie  be  nonsuited,  or  have  a  verdict  against  him,  may  bring  another 
ejectment  against  the  same  defendant,  or  if  he  succeeds  in  the  action 
and  gets  possession,  he  is  still  liable  to  an  ejectment  from  the  defendant 
in  the  former  action  (n). 

This  in  one  respect  may  be  deemed  an  advantage,  because  the  par- 
ties are  not  concluded  by  one  trial,  in  case  the  real  merits  (tVom  acci- 
dent, partiality,  want  of  evidence,  which  might  be  afterwards  supplied, 
or  the  like)  happened  not  to  have  been  fairly  tried  I>etween  them :  hut 
in  another  respect,  much  mischief  may  resdit  from  it,  as  the  spirit  of  li- 
tigation is  thereby  kept  alive  (//). 

The  reason  why  an  action  of  ejectment  is  not  or  cannot  be  final 
seems  to  be  this :  That  it  is  impossible,  from  the  structure  of  the  re- 
coid  in  this  action,  to  plead  a  former  in  bar  of  another  ejectment 
brought ;  because,  1.  The  plaintLfl'and  defendant  are  nominal  and  exist 
in  most  cases  on  record  only,  and  consequently  may  be  changed  in  a 
new  action ;  but  the  identity  both  of  plaintiff  and  defendant  must  be 
averred  in  pleading  a  former  action  in  bar  (c).  2.  The  term  demised 
may  be  laid  many  diHerent  ways.  It  has  sometimes,  indeed,  been  at- 
tempted in  Chancery,  after  three  or  four  ejectments,  by  a  bill  of  peace 
to  establish  the  prevailing  party's  title,  yet  it  has  always  been  denied, 
for  every  termor  may  have  an  ejectment,  and  every  ejectment  supposes 
a  new  demise,  and  the  costs  in  ejectment  are  a  recompense  for  the  trou- 
ble and  expense  to  which  the  possessor  is  put.- — Bt  where  the  suit  be- 
gins in  Chancery  for  relief  touching  pretended  incumhranees  on  the 
title  of  lands,  and  that  Court  has  ordered  the  defendant  to  pursue  an 
ejectment  at  law,  where  after  one  or  two  ejectments  tried,  and  the 
right  settled  to  the  satisfaction  of  the  Court,  the  Court  has  ordered  a 
perpetual  injunction  against  the  defendant,  because  there  the  suit  is  first 
attached  in  that  Court,  and  never  began  at  law  (d) ;  and  such  prece- 
dent incumbrances  appearing  to  be  fraudulent,  and  inequitable  against 
the  possession,  it  is  within  the  compass  of  the  Court  to  relieve  against 
it  [c). 

As  the  costs  of  the  ejectment  are  deemed  the  recompense  as  above 
stated  (though  in  truth  but  a  poor  one)  the  Court  w  ill  not  suiTer  either 

(a)  2  Sell.  Pi-act.  2nO.  (t;  lb'i<5.  (c)  4  Eunomus,  139.      . 

Id)  2  Sell.  Fract.  i3^..  («,  1  Str.  401.  , 


Sect.  IV.]       0/  rt  second  Arlion  of  fyiclmcnf.  IJ3 

the  plainlliT  to  hriiii;  a  new  rjcctnirnt  or  tlio  drfciidant  to  briiij;  tlic 
rj-ctmciit  cii;aii).'-t  the  5iicreF8fiil  plaintilV,  until  the  rostf  of  the  former 
action  are  p  lid. — The  Courts  now  ronsidcr  a  fornit  i#i('r,tmcnt  in  ano- 
ther Court,  as  one  in  the  same  Court,  and  w  ill  stay  proceedings  in  a  se- 
cond till  the  costs  of  the  former  nrc  jiaM  {a). 

So,  1hf»n>;h  in  such  former  (jtctment  tlic  lessor  of  t!ir  plainliH' never 
entered  into  tlie  consent  rule  :  and  where  a  rnin  for  a  nc%v  trial  was  o!»- 
tained  on  Vac  ground  of  the  plaintiil"  having;  I)C'cn  nonsuited  by  reason 
of  hi-?  inahilily  to  prove  tliat  tlic  defondint  had  entered  into  tlie  com- 
mon rule  to  defend  as  landl  )rd,  the  Court  said,  t!iat  as  there  had  Ueen  a 
slip  in  the  plaintiilnot  bein^  able  to  prove  the  rule  under  which  the 
defendant  was  let  in  to  defend,  thougli  no  blame  was  iniputal)Ie  to  him 
as  the  oI)jection  could  not  be  foreseen,  yet  the  new  trial  nuist  be  on  tlic 
common  terms  of  payment  of  costs  {/>). — So,  when  an  ejectment  was 
brought  l)y  a  fraudulent  assignee  of  an  insolvent  debtor,  the  former 
lessor  being  plaintiil". — So,  proceeding  was  stayed  in  error  and  a  second 
ejectment,  the  plaint i/f  not  being  able  to  shew  that  the  writ  of  err  )r 
was  brought  with  any  other  view  than  to  delay  payment  of  costs  (r). 
The  remedy  to  enforce  the  payment  of  costs,  after  verdict  is  by  at- 
tachment.— But  where  the  lessor  of  the  plaint iif  has  been  taken  into 
custody  upon  an  attachment  for  costF,\vliicli  is  in  the  nature  of  acipias 
ad  satisfnrinnliim,  there  is  no  reason  to  grant  the  rule  to  stay  pro- 
ceedings in  another  action  brought  by  the  sani"  I  "^<or  on  tlie  same  de- 
mise (fl). 

So,  where  before  trial  a  mistake  is  discovered,  so  as  to  render  itnc- 
;  ssary  to  serve  a  new  ejectment,  the  Court  will  not  stay  proceedings 
;  id  the  costs  of  the  lirst  arc  paid  ;  unless  the  party  has  been  vexatious, 
or  great  expense  has  been  incurred. 

I5ut  if  the  lessor  of  the  plaintiifbe  not  known,  tlie  Court  will  order 
notice  to  be  given  where  he  may  be  found. — So,  if  lie  abandons  his 
tjectmcnt  in  one  Court  and  brijigs  a  new  action  in  the  other  (r). 

Proceedings  in  a  second  ejectment  were  stayed  till  the  special  verdict 
in  the  former  was  determined  (/). 

AVhen  the  plaintilV  succeeds  in  an  ejectment,  the  defendant  cannot 
bring  a  now  ejectment  against  him,  until  he  has  delivered  up  pl•sse- 
ion,or  the  tenants  in  possession  have  attorned:  and,  it  should  seem, 
lill  he  has  also  paid  the  costs  of  the  former  action  (^). 

The  Court  will  not  give  the  plaintiil"  leave  to  discontinue  after  a  spe- 
cial verdict  his  been  had,  in  order  to  adduce  fresh  proof  in  contrailic- 
tion  to  the  verdict  (//). 

(a)  2St-ll.  I'n\r'.2ni.  (ijSIU.H.    (h.  I  .»■  c-    cm   SUutc  ^^  '.)   Le.  M.  T. 

40G.3.  K.  I»     T'a.MSS.  fc)    Ihid.  1 1««'.     1  Sir.  Ml. 

(d]  I  Sell.  Pract.  2r.  t)  l;  Vtr.  681.  1039.  MSI.  1  T.  U..131. 
(/>  -  Sir.  1105.                                (r)  3  C!«lk.  288,  J.  <*,  2  BL  it.  815. 


42d         Of  the  Action  of  Ejectment  upon        [Chap.  XIT. 

Section  Y.     Of  the  Action  of  Ejectment  upon  the  Statute 
a     4  G.  2.  c.  28.  s.  2. 

By  the  common  law  an  actual  entry,  by  the  person  claiming  title  to 
lands  and  tenements,  was  necessary  to  be  made  in  order  to  support  an 
action  of  ejectment ;  but  in  the  case  of  a  lease,  the  landlord  could  not 
enter  and  take  the  actual  possession  until  the  lease  was  expired  :  it 
therefore  became  usual  to  insert  a  proviso  that  in  case  the  rent  of  the 
demised  premises  was  behind  and  unpaid  at  a  certain  time,  the  lessor 
should  have  a  right  to  re-enter.  In  i)arol  demises,  however,  from  year 
to  year,  the  landlord  could  not  have  the  benefit  of  such  a  proviso  ;  and 
when  the  light  of  re-entry  subsisted,  great  inconvenience  frequently 
happened  to  lessors  or  landlords  in  cases  of  re-entry  for  non-payment 
of  rent ;  by  reason  of  the  many  niceties  that  attended  such  re-entries 
at  common  law,  and  even  when  a  legal  re-entry  was  made,  the  landlord 
or  lessor  was  put  to  the  expense  and  delay  of  recovering  in  ejectment 
before  he  could  obtain  the  actual  possession  of  the  demised  premi- 
ses («). — It  is  tiierefore  enacted, 

By  the  4ith  G.  2.  c.  23.  s.  2.  "  That  in  all  cases  between  land- 
lord and  tenant,  as  often  as  it  shall  happen  that  one  half  year's  rent 
shall  be  in  rear,  and  the  landlord  or  lessor  to  whom  the  same  is  due, 
hath  right  by  law  to  re-enter  for  the  non-payment  thereof  ;  such  land- 
lord or  lessor  shall  and  may,  without  any  formal  demand  or  re-entry, 
strve  a  declaraiion  in  ejectment  for  the  recovery  of  the  demised  pre- 
mises; or  in  cai^e  the  same  cannot  be  legally  served,  or  no  tenant  be  in 
actual  possession  of  the  premises,  juay  then  affix  the  same  upon  the 
door  of  any  demised  messuage  ;  or  in  case  such  ejectment  sliall  not  be 
for  the  recovery  of  any  messuage,  then  upon  some  notorious  place  of 
the  lands,  tenements,  or  hereditaments,  comprised  in  such  declaration 
in  ejectment,  and  such  affixing  shall  be  deemed  legal  service  thereof ; 
■which  service  or  affixing  sucli  declaration  in  ejectment  shall  stand  in 
Jfche  place  and  stead  of  a  demand  and  re-entry  ;  and  in  case  of  judgment 
against  tlie  casual  ejector,  or  nonsuit,  for  not  confessing  a  lease,  entry, 
and  ouster,  it  shall  be  made  appear  to  the  Court,  where  the  said  suit  is 
depending,  by  affidavit,  or  be  proved  upon  the  trial,  in  case  the  de- 
fendant appears,  that  half  a  year's  rent  was  due  before  the  said  declara- 
tion was  served  ;  and  that  no  sufficient  distress  was  to  be  found  on  the 
demised  premises  countervailing  the  arrears  then  due,  and  that  the  les- 
sor or  lessors  in  ejeptment  had  power  to  re-enter,  in  every  such  case,  the 
lessor  or  lessors  in  ejectment  shall  recover  judgment  and  execution  in 
the  same  u^anner  as  if  the  rent  in  arrear  had  been  legally  demanded  and 

(a;  Paul's  Land.  &c.  Lawy.  U9. 


Sect,  v.]         the  Statute  \  Ci.  2.  c.  1\\.  s.  2.  42.') 

a  ic-cntry  made  :  and  in  case  the  le.'sec  or  let^sccF,  his,  lier,  or  their  ns- 
flignec  or  a?.>>ii^iiees,  or  other  jHrgon  or  persons  ciainn'nu;  or  tUriving 
under  the  said  lease,  shall  permit  ami  sii  Her  judgment  to  he  had  and  re- 
covtreil  on  such  ejertment  and  cxecnlion  to  he  exccnted  thereon  uilh- 
out  iiiiying  the  rent  and  arrears,  together  \s  ith  full  cosis,  and  wilhont 
filing  any  bill  or  hills  for  relief  in  equity  vitiiinsix  calendar  months 
after  such  execution  executed  ;  then  such  leasee,  Src.  and  all  others 
claiming  and  deriving  under  the  said  lease,  sliall  be  barred  or  foreclosed 
from  all  relief  in  law  or  equity,  olher  than  by  writ  of  error  lor  reversal 
of  such  judgment  in  case  the  same  shall  be  erroneous;  and  the  said 
landlord  and  lessor  shall  from  thenceforth  hold  the  said  «lcmised  pre- 
mises dischnraed  from  such  lease:  ami  if  on  such  ejcclnient,  verdict 
shall  pass  for  the  defendant,  or  the  plaintiil' shall  be  nonsuited  therein, 
except  for  the  defendant's  not  confessing,  ^c.  then  such  defendant  shall 
recover  his,  her,  or  their  full  costs." 

Proviso  as  to  Mortga^^ccs.-^'-^  Provided  always,  that  nothing  herein 
contained  shall  extend  to  bar  the  right  of  any  Jiiortgagee  or  mortga- 
gees of  such  lease,  or  ariy  part  thereof,  wlio  shall  not  be  in  possession, 
so  as  sucli  mortgagee  or  mortgagees,  within  six  calendar  months  after 
Fuch  judgment  obtained  and  execution  executed,  pay  all  rent  in  arrtar 
and  all  costs  and  damages  sustained  by  such  lessor,  or  persons  entitled 
to  the  remainder  or  reversion  as  aforesaid,  and  perform  ail  the  covenants 
and  agreements  which  on  the  part  and  lichalf  of  the  first  lessee  or  les- 
sees, ought  to  I)e  performed." 

Of  Proceedings  in  pjjuihi. — l^.y  sect.  3.  "  In  case  the  said  lessee  or 
lessees,  his,  her,  or  their  assignee  or  assignees,  or  otlier  jierson,  cl  lini- 
ng any  riyht,  title,  or  interest,  in  law  or  equity,  of,  in,  or  to  the  said 
lease,  shall,  within  the  time  aforesaid,  file  one  or  niore  bill  or  !)iils,  for 
•■elief  in  any  Court  of  equity,  sucli  person  or  persons  shall  not  have  or 
tnliniie  any  injunction  against  the  proceedings  at  law  on  such  eject- 
meiit,  unless  he,  she,  or  they  within  forty  days  next  after  a  full  and 
perfect  answer  shall  be  filed  by  the  lessor  or  lessors  of  the  plain! i if  in 
such  ejrctnient,  brinj  into  Court,  and  lodge  with  t lie  proper  officrr, 
such  sum  of  money,  as  the  lessor  or  lessors  of  the  plaintiH'  in  the  said 
rieclment  shall,  in  their  answers,  swear  to  be  due  and  in  arrear,  over 
and  al:ove  all  just  allowances,  and  ah-o  the  costs  taxed  in  the  said 
iiit ;  there  to  remain  till  the  hearing,  or  to  be  paid  out  to  the  lessor  or 
landlord,  on  good  security,  subject  to  the  decree  of  th3  Court :  and  in 
case  such  bill  or  bills  shall  be  filed  within  the  time  aforesaid,  and  after 
execution  is  executed,  the  lessor  or  lessors  of  the  pUiiililf  shall  be  ac 
countable  only  for  so  much,  and  no  more,  as  he,  she,  or  they  shall 
really  and  bona Jidr,  without  fraud,  deceit,  or  wilful  neglect,  make  of 
the  ticmised  premises,  from  the  time  of  their  entering  into  the  actual 
possession  thereof ;  and  if  w  liat  shall  be  so  made  by  the  lessor  or  icssori 


426  Of  the  Action  of  Ejectment^  upon     [Chap.  XIV, 

of  the  plaintiff,  happen  to  be  less  than  the  rent  reserved  on  the  said 
lease,  then  the  said  lessee  or  lessees,  his,  her,  or  their  assignee  or  as- 
signees, l)efore  he,  she,  or  they  shall  be  restored  to  his,  her,  or  their  pos- 
session or  possessions,  shall  pay  such  lessor  or  lessors,  landlord  or  land- 
lords, what  the  money  so  by  them  made  fell  short  of  the  reserved  rent, 
for  the  time  such  lessor  or  lessors  of  the  plaintiff,  landlord  or  landlords, 
held  the  said  lands." 

Sect.  4.  "  Provided  that  if  the  tenant  or  tenants,  his,  her,  or  their 
assignee  or  assignees,  shall  at  any  time  before  the  trial  in  such  eject- 
ment, pay  or  tender  to  the  lessor  or  landlord,  his  executors  or  admini- 
strators, or  his,  her,  cr  their  attorney  in  that  cause,  or  pay  into  the 
Court  where  the  same  cause  is  depending,  all  the  rent  and  arrears,  to- 
gether with  the  costs ;  then  all  further  proceedings  in  the  said  ejectment 
shall  cease  and  be  discontinued  ;  and  if  such  lessee,  &c.  or  their  exe- 
cutors, administrators,  or  assigns,  shall,  upon  such  bill  filed  as  aforesaid, 
be  relieved  in  equity,  he,  she,  and  they  shall  have,  hold,  and  enjoy  the 
demised  lands  according  to  the  lease  thereof  made,  without  any  new 
lease  to  be  thereof  made  to  him,  her,  or  them." 

Intent  of  the  Statute. — The  statute  relates  to  ejectment  for  non-pay- 
ment of  rent,  only  where  the  landlord  has  a  right  to  re-enter. — The 
true  end  and  professed  intention  of  the  Act  of  Parliament  is  to  take  off 
from  the  landlord  the  inconvenience  of  his  continuing  always  liable  to 
an  uncertainty  of  possession  from  its  remaining  in  the  power  of  the 
tenant  to  offer  him  a  compensation  at  any  tiiiie,  in  order  to  found  an 
application  for  relief  in  equity  ;  and  to  limit  and  confine  the  tenant  to 
six  calendar  months  after  execution  executed  for  his  doing  this  :  or  else 
that  the  landlord  should  from  thenceforth  hold  the  demised  premises 
discharged  from  the  lease  (a). 

Courts  of  law  always  lean  against  forfeitures,  as  Courts  of  equity  re- 
lieve against  them  :  therefore,  whenever  a  landlord  means  to  take  ad- 
vantage of  any  breach  of  covenant  so  as  that  it  should  operate  as  a  for- 
feiture of  the  lease,  he  must  take  care  not  to  do  any  thing  which  may 
be  deemed  an  acknowledgment  of  the  tenancy,  and  so  operate  as  a  wai- 
ver of  the  forfeiture  ;  as  distraining  for  the  rent,  or  bringing  an  action 
for  the  payment  of  it,  since  the  forfeiture  accrued  ;  or  accepting  such 
rent.  So,  an  action  for  double  rent  on  the  same  statute,  will  be  barred 
by  an  acceptance  of  rent  (^b). 

Therefore,  where  an  ejectment  has  been  brought  on  the  stat.  4  G.  2. 
c.  28.  s.  2.  for  the  forfeiture  of  a  lease,  there  being  half  a  year's  rent 
in  arrear,  and  no  sufficient  distress  on  the  premises :  acceptance  of  rent 
afterwards  by  the  landlord,  has,  it  seems,  been  held  a  waiver  of  the 
forfeiture  of  the  lease ;  which  may  well  be  ;  for  it  is  a  penalty,  and  by 

(a)  I  Bur.  619.  (6)  Bull.  X.  P.  9G.    Cowp.  247.    Co.  81. 


Sect,  v.]  the  Statute  ^  G.  2.  c.  2«.  «.  1.  427 

accepting  the  rent,  the  party  waives  the  penalty. — Such  acceptance  of 
rent  however  niiist  he  with  the  knowledge  of  the  forfcitiiro  liavini;  l.tdi 
iiicurreil,  for  otherwi'^e  it  tines  nut  manifest  ajiy  intention  iu  the  land- 
lord to  continue  his  tenant  (a). 

J?nt  though  the  tenant  has  incurred  a  fjrlVittirc  under  tlie  statute,  yet 
he  may  stay  proceedings  cither  t>y  trndering  the  rent  before  ejectment 
is  delivered,  or  by  movins^  for  leave  to  pay  into  Court  all  the  rent  du«i 
and  costp,  any  time  JHjfore  the  writ  of  possession  is  executed,  even  af- 
ter jud.;ment  against  the  casual  ejector  [(>). 

Or  it  may  be  done  by  sunnnons  in  vacation  time. 

IJcfore  llic  statute,  proceedings  would  ])c  stayed  on  bringinc;  the  rent 
in  arrear  and  cost^■  into  Court,  in  an  action  whether  of  covenant  or  dc  I)t 
for  rent  :  and  it  is  not  now  confined  to  actions  under  the  statute  (r). 

For,  where  in  ejectment  by  a  landlord,  tlie  tenant  moved  to  stay  pro- 
ceedings upon  payment  of  rent,  arrears  and  costs.  On  a  rule  to  slicw 
cau?e,  it  was  insisted  for  tJie plaintiff  that  the  case  was  not  within  \\\c  Act 
for  that  it  was  not  an  ejectment  founded  singly  on  the  Act,  l)ul  that  it 
was  brought  likewise  on  a  clause  of  re-entry  in  the  lease  for  not  repair- 
in^',  and  the  lease  was  producecl  in  Court :  however  the  rule  uas  made 
abso!ute,with  liberty  forthe  plaintilVto  proceed  upon  any  other  title(</). 

Where  tlie  rent  was  tendered  before  notice  of  the  action  :  the  pro- 
ceedings were  set  aside  for  irregularity  ;  and  the  landlord  Jiaving  given 
directions  respecting  the  matter  to  his  attorney,  was  held  to  amount  to 
nothing  (r). 

The  lessors  of  the  plaintifT  were  both  devisees  and  eiecutor?,  and 
in  each  capacity  rent  was  tXuc  to  them.  The  defendant  moved  to  star 
proceedings  on  payment  of  the  rent  due  to  the  lessors  of  the  plaintiff  as 
devisees,  they  not  being  entitletl  to  l)ring  an  ejectment  as  executors. 
There  appeared  to  be  a  mutual  debt  due  to  the  defendant  by  simple 
contract,  and  the  defendant  offered  to  go  into  the  whole  account,  taL'- 
ing  in  both  demands  as  ilevisces  and  executors,  having  just  allowan- 
ces ;  wiiich  the  lessors  of  the  plaintiff  refused.  The  rtde  w<is  made 
absolute  to  stay  proceedings  on  payment  of  the  rent  due  to  the  lessors 
or  devisees,  and  costs  (/). 

If  the  lease  specifies  that  a  demand  of  rent  should  be  made,  ejert- 
luent  cannot  be  brought  till  such  demand  bo  made  :  but  \\ithout 
such  stipulation  no  demand  is  uecessTry  ;  but  only  that  six  mont lis* 
rent  sliould  be  in  arrear,  and  no  sufficient  distress  Im;  on  the  premises; 
— This  statute,  Lord  iMimsfirtd  observed,  ji'as  very  perplexed  (5-). 

As  to  the  question,  \\h'th''r  ai.  utual  '<^try  is  n?cej-sary  in  order  to 
maintain  an  ejectment  o.i  a  clai;i-e  of  re  rv.try  for  non-payment  of  rent, 

>   <    'V.  ;i:.  ..  y.  a  Pnict  rio.  sait.  517. 

^rf)  BuH    N.   r.  •"  ..  iii.  K    -47  />  Uar    luj.     i -elJ,  Pract.  Z'.^. 

'.SI   Bong.   ;b'-. 


428  Of  the  Action  of  Ejectment,  ^c.       [Chap.  XIF. 

the  better  opinion  has  been,  that  it  is  not  («)  ;  for  that  an  actual  entry- 
is  only  necessary  to  avoid  a  fine,  or  perhaps  to  prevent  the  operation  of 
the  statute  of  limitations,  where  tenant  for  life  levies  a  fine,  though  it 
is  no  bar  to  those  in  remainder,  yet  it  seems  that  a  remainder-man  must 
mate  an  actual  entry  before  he  can  maintain  an  ejectment  ;  and  where 
an  entry  is  necessary,  the  demise  must  be  laid  after  it  (^). 

In  moving  for  judgment  upon  a  declaration  in  ejectment  delivered,  or 
(in  case  of  no  tenant)  affixed  to  the  premises,  according  to  the  statute, 
the  Courts  require  an  affidavit  that  half  a  year's  rent  was  in  arrear  be- 
fore declaration  served,  that  the  lessor  of  the  plaintiil'had  a  right  to  re- 
enter, that  no  sufficient  distress  was  to  be  found  on  the  premises  coun- 
tervailing the  arrears  of  rent  then  due,  that  the  premises  v/ere  untenant- 
ed, or  that  the  tenant  could  not  be  legally  served  with  the  declaration 
(as the  case  is),  and  that  a  copy  of  the  declaration  was  affixed  on  the 
iDost  notorious  (stating  what)  part  of  the  premises  :  else  the  Court  will 
not  grant  a  rule  for  judgment. — This  affidavit  is  necessary  only  upon 
moving  for  judgment  against  the  casual  ejector,  or  after  a  nonsuit  at 
the  trial  for  the  tenant's  not  confessing  lease,  entry,  and  ouster. 

For,  if  the  tenant  appears,  and  the  ejectment  comes  to  trial,  the 
matters  averred  in  the  above  affidavit  must  be  proved  upon  the  trial(r). 
Note.     The  affidavit  is  necessary  only  in  proceeding  under  the  sta- 
tute but  not  on  the' common  law  proceeding  {d). 

The  declaration  in  ejectment  is  prepared  in  the  usual  way,  taking 
care  to  lay  the  demise  after  the  forfeiture  accrued  (e). 

The  late  tenant  or  other  person,  claiming  title  to  the  premises,  has 
the  same  time  to  appear  in  as  is  allowed  to  tenants  in  possession  (/). 

After  appearance  the  proceedings  are  the  same  as  in  other  cases : 
therefore  in  case  of  no  appearance,  the  plaintiff  moves  for  judgment 
against  the  casual  ejector  on  the  affidavit  above-mentioned,  and  pro- 
ceeds as  in  ejectments  at  common  law  (^g). 

Thus,  where  the  case  comes  within  the  statute,  there  is  no  occasion 
for  the  landlord  to  make  an  actual  entry  and  seal  a  lease  on  the  pre- 
mises :  which,  as  we  have  before  shewn,  must  be  done  in  all  othet  cases, 
where  the  premises  are  untenanted,  nor  is  there  any  occasion  to  prove 
at  the  trial  any  actual  entry  or  ouster  ;  for  if  the  defendant  appear,  the 
common  consent  rule  Ls  sufficiently  binding  [h). 

The  affidavit  will  in  some  cases  be  presumed  ;  as  after  a  long  and 
quiet  possession. 

Thus  where  an  ejectment  was  brought  by  a  landlord  against  his  te- 
nant, under  this  statute,  anc*  judgment  was  had  against  the  casual  ejec- 
tor by  default,  ^nd  possession  thereupon  delivered:  and  nearly  twenty 


(n)  Doug.  405.  Salk.  259.  Bull.  N.  P.I02. 

{.D 

7T.  n.4.33. 

(c)  1  Bur.  GiO 

(d)   Ibid.  618.                        (t)  a  Sell.   I'ract.  212. 

(-/;  Ibid. 

{£)  Ibid. 

\h)  Doug.  485^, 

M 


Ffct.  v.]        Of  tht  Kcnmlj/  for  the  Landhrd,  <S\.         42'.) 

yens  aftor,  the  tenant  brims  an  cicctinenl  ai;aiiij-t  llic  ^a\\\k  landlord  for 
the  sunie  preniisis.  The  landlord,  \\\\o  i^  diftiidant  in  this  l:itt<r  ac- 
tion, is  not  ohiiged  to  jiroduce  such  an  aHiduvit  as  this  clause  ri(iiiires, 
as  an  cssiiitial  n-quisitc  previous  to  his  orii;inal  recovery;  for  as  it 
was  csstnliaiiy  ptinisite,  tiir  Court  will  prcsiime  tliat  Ricli  allidavit 
was  rt;.;nl.iiiy  nuidi:  at  tlic  time,  and  that  the  jud_Mnent  was  Lnnuic*! 
nn  it  (f). 

The  landhird's  renifdy  for  rent  in  arrear,  is  !)y  action  for  the  incsnr 
profits,  which  as  has  hecn  'lefore  observed,  is  consequent  to  the  action  of 
eicitinent,  wlierehy  the  possession  only  is  recovered  (6). 

If  «)nc  pretendin:?  to  have  title  to  land  give  security  to  the  tenants  to 
hive  llieni  harmless  ui)on  payini;  him  the  rent,  ami  aftcrvsiuds  another 
recover  in  ejictnient  against  them,  thoy  have  no  icmeUy  upon  the  se- 
curity until  recovery  of  llie  mesne  profits  (r). 


Sf.ction  V.  Of  Ihc  Ixcmcili/  for  the  L<uiJ!orJ,  under 
the  Statute  11  G.  2.  c.  19.  Khnc  tht  Fn mists  arc 
racdiit. 

The  injury  that  the  jiindiord  would  sustain  in  hi?  profits  ])y  his  land-? 
lyiu;^  fHllo\\-  and  his  huildinj^s  jroini;  to  decay,  owing  to  the  destrtion  of 
hiij  tenant  and  the  actual  possession  of  the  premises  remaining  in  no  one, 
is  remedied  hy  the  stat.  11  (i'.2.  c.  19.  .v.  10.  which  after -^t  at  in-;  that, 
"  Whereas  lamllords  arc  often  i;reat  suiicrers  by  tenants  running  away 
in  arrear,  and  not  only  suiferinij  the  demised  premises  to  he  uncultiva- 
ted u  ithout  any  distress  thoreon,wherel)y  their  landlords  or  lessor?  mi^ht 
he  satisfied  for  the  rcnt-arrear,  but  also  refusing  to  lieliver  up  t!»c  j)os- 
6e??ion  of  the  demised  premises,  whereby  the  landlords  are  put  to  the 
expense  and  delay  of  recovering  in  ejectments,  enacts,  That  if  any  te- 
nant hohlliig  any  lands,  tenement?,  or  hereditaments  at  a  rark  rent,  or 
where  the  rent  reserved  shall  be  lull  tiiree-foiirths  of  tlie  yrarly  value  of 
the  demised  premi-es,  and  leave  the  siime  uncultivated  or  unuccupin', 
so  as  no  sulhcient  distress  can  be  had  to  countervail  the  arrears  uf  rcni, 
it  shall  and  may  be  lawful  to  and  for  two  or  more  Justices  of  the  Peace 
of  the  county,  riding,  division,  or  place    (having  no  intirtst  in  the  de- 
mised premises),  at  the  request  of  the  lessor  or  landlord,  lessors  or 
landlords,  or  his,  her,  or  their  bailiiror  rceivrr,  to  go  nport  and  view 
the  Fame,  and  to  affix,  or  cau5e  lo  be  atfixed,  on  tljc  mobi  notorious 
p;iit  of  the  premises,  nolicc  in  writing  what  ilay  (at  the  distance  of 
fourteen  days  at  hdst)  tliey  will  return  to  take  a  second  viciv  thcvb- 

>:  1  Bar  8l«.  /-b;  2  n»r.  c.c'}  f<,)  e  Mol.  £2. 


ViO        Of  the  Rantdy  for  the  Landlord,  SCc.     [Chap.  XIV. 

of:  and  if  upon  such  second  view,  the  tenant,  or  some  person  upon 
his  or  her  behalf,  &hall  not  appear  and  pay  the  rent  in  arrear,  or  there 
shall  not  he  sufficient  distress  upon  the  premises ;  then  the  said  Justices 
may  put  the  landlord  or  landlords,  lessor  or  lessors,  into  the  possession 
of  the  said  demised  premises  ;  and  the  lease  thereof  to  such  tenants,  as 
to  any  demise  therein  contained  only,  shall  from  thenceforth  become 
void." 

Gurneij  moved  for  a  mandamus  to  be  directed  to  some  magistrates  of 
the  county  of  Middlesex,  in  order  that  they  should  proceed  on  s.  IG. 
of  this  statute,  to  put  a  landlord  into  possession  of  some  premises  de- 
«8rted  by  the  tenant.  He  stated  his  case  to  be  within  the  Act,  and  said, 
that  the  magistrates  had  refused  to  interfere,  because  the  tenant  was  a 
lodger  only. — L.  Kcnyon,  on  referring  to  the  Act,  asked  whether  the 
premises  were  on  lease,  and  if  there  was  a  proviso  for  re-entering  ? 
On  the  Counsel  answering  in  the  negative,  his  Lordship,  said,  in  his 
opinion,  the  case  was  not  Mithin  the  Act.  The  prean:il)ic  of  the  clause 
spoke  of  the  expense  and  delay  to  which  landlords  were  put  in  bring- 
ing ejectments  ;  it  seemed,  therefore,  to  him,  that  the  clause  applied 
only  to  cases  where  the  landlord  could  support  an  ejectment,  as  where 
there  was  a  written  lease  with  a  condition  to  re-enter  :  if  no  such  thing 
existed  in  this  case,  the  magistrates  had  done  right  in  refusing  to  inter- 
fere.— Rule  refused  {a). 

Sect.  17.  "  Provided  always,  that  such  proceedings  of  the  said 
Justices  shall  be  examinable  in  a  summary  way  by  the  next  Justice 
or  Justices  of  Assize  of  the  respective  counties  in  which  such  lands 
or  premises  lie ;  and  if  they  lie  in  the  city  of  London  or  county  of 
Middlesex^  by  the  Judge  of  the  Courts  of  King's  Bench  or  Common 
Pleas  ;  and  if  in  the  counties  palatine  of  Chester,  LaJicaster,  or  Dur- 
ham, then  before  the  Judges  thereof ;  and  if  in  Wales,  then  before  the 
Courts  of  Grand  Sessions  respectively ;  who  are  hereby  respectively 
empowered  to  order  restitution  to  be  made  to  such  tenant,  together 
M  ith  his  or  her  expenses  and  costs,  to  be  paid  by  the  lessor  or  landlord, 
lessors  or  landlords,  if  they  shall  see  cause  for  the  same;  and  in  case 
they  shall  affirm  the  act  of  the  said  Justices,  to  award  costs  not  exceed- 
ing five  pounds  for  the  frivolous  appeal." 

Note.     In  this  and  all  other  the  like  cases,  the  Justices  ought  to  make 
a  record  of  the  whole  proceedings  (b). 

(a)  £a=t.  T.  4)  G.  3.    T.-«  MSS.  (J-  4  Burn.  Tit   "  Vagrants."  ). 


1 


4S1 


CIIAITF.R  XV. 


Of   the    Ihmcdics  for    and  a^ainsf  Lnmllord  and    Tcuani, 

(continued.) 

For  titr  Lfindhrd,  for  lireach  of  Covenants  and  A^rce^nvnta 
other  than  for  Hnd. 


Section  T.     Bi/  Aefion  of  Covenant.' 
JSection  II.     Bj/  Action  of  Assumpsit. 


Section  I.     Of  the  Aclion  of  Covenant. 

AX  aclion  of  covenant  or  assumpsit,  according  ap  the  premise?  arc 
demised  by  deed  or  not,  lies  for  the  recovery  of  damacjes  for  any  injury 
sustained  by  tlie  landlord  in  consequence  of  tiie  tenant  neglecting  to 
repair  the  l)uildin5S,  suflfering  trades  to  l>e  carried  on  therein  contrary 
to  Jiis  covenant,  treating  the  land  in  an  unhusbandnianlike  manner,  or 
conunitting  any  other  breach  of  the  agreement. 

An  action  of  covenant  carn)ot  be  maintained  except  iipun  a  deed, 
and  the  declaration  must  shew  tliat  it  is  brought  on  one  {a). 

In  the  case  of  joint-lessees,  if  a  lease  be  to  //.  and  Ji.  by  indenture, 
and  y/.  seals  a  counterpart,  and  Ji.  agrees  to  the  lease,  but  dois  not 
teal,  yet  B.  may  be  charged  for  a  covenant  broken  ;  and  this  though 
the  covenant  be  collateral,  and  not  annexed  to  the  land  (/;).  The 
assignee  of  a  term,  liowever,  is  not  liable  on  a  mere  collateral  cove- 
nant (r). 

So,  if  one  party  execute  an  indenture,  it  shall  be  his  deed,  tliough 
the  other  party  do  not  execute  it:  but  in  order  to  make  it  ncce-sary  for 
flie  plaintiif  to  sue  in  covenant,  the  bimling  by  deed  ouglit  to  be  inu- 
1  xl  (except  in  the  case  of  lessee  of  the  King's  Patent)  :  for  where  a  d(  - 
fendant  has  never  sealed  the  indenture  he  cannot  be  sue d  in  that  ioiin 
'faction  (,/). 

.i'ouching  tlie  sealinj;  of  b)r.d-:  or  dreds,  if  it  appear  upon  oyer 

>)  :  I.d    Haym.  ISr.S.  (5    Co.   I  it.  23'    a 

e    Cru    J.IC.  4,9.  di  Crc.  Hiz.  212.  ( ro   ;•«.  ;iP. 


432  Of  the  Action  of  Covcnanl.         [Clinp.  XV^ 

that  two  partcis  sealed  it,  Avliereas  one  only  is  sued,  the  law  vill  not 
intend  that  the  other  sealed  the  deeds  unless  it  be  expressly  averred 
that  he  did  :  and  though  tlie  bond  or  deed  upon  oyer  recite,  "  in  wit- 
ness whereof  we  have  set  our  hands  and  seals,"  yet  that  does  not 
amount  to  such  an  averment,  but  tlie  defendant  must  shew  that  the 
bond  or  deed  was  actually  sealed  by  the  other  (a). 

There  are,  indeed,  some  m  ords  of  art,  such  as,  "  indenture,"  "  deed," 
or  "  writing  obligatory,"  which  of  themselves  import  that  the  instru- 
ment was  sealed  by  the  party  without  an  averment  of  sealing.  If, 
therefore,  the  declaration  states  that  J.  S.  by  his  "  deed"  did  so  and 
tio,  or  by  "  indenture"  covenanted  or  demised,  or  by  his  "  writing  ob- 
ligatory" acknowledged,  ^^c.  without  averring  in  either  of  these  cases 
that  he  sealed,  still  the  declaration  is  good.  So,  delivery,  which  is  es- 
sential to  a  deed,  is  never  averred  (/}. 

But  without  such  averment,  or  words  of  art,  it  is  otherwise:  for  if 
it  be  alledgcd  that  J.  S.  by  his  "  certain  writing"  simply,  demised,  or 
covenanted,  or  acknowledged,  <^t.  without  averring  that  lie  sealed, 
the  Court  will  not  intend  that  the  writing  was  sealed  (r).  Neither 
does  it  follow,  because  the  words  "  in  witness  whereof  we  do  put  our 
hands  and  seals,''  are  used  in  the  conclusion  of  an  agreement,  that 
therefore  it  was  sealed  by  the  parties :  on  the  contrary,  it  has  been 
decided  that  these  words  do  not  amount  to  an  aver.ment  that  the  parties 
sealed  the  instrument  (<-/). 

Leaving  the  glass  of  windows  cracked  has  been  held  to  be  a  breach 
of  covenant  to  repair. — So,  n»t  repairing  a  pavement  is  a  breach  of 
covenant  to  leave  the  premises  sufficiently  maintained  and  repaired  : 
for  it  is  within  the  intention  of  the  covenant,  and  is  rjuasi  the  build- 
ing;  and  tlie  not  repairing  may  be  matter  of  value  and  of  such  pre- 
judice to  the  lessor.- — So,  carrying  a'A  ay  a  shelf,  though  not  stated  to 
be  a  fixture,  has  been  held  to  be  a  breach  of  covenant  to  leave  the 
premises  in  the  same  order,  £:c.  ;  for  it  shall  be  intended  to  be 
fixed  (e), 

A  covenant  to  repair  during  the  term  after  three  months'  notice, 
and  to  leave  the  premises  in  repair  at  the  end  of  the  term,  are  distinct 
claurcs:  therefore  notice  is  not  necessary  to  sustain  an  action  for  non- 
repair at  the  end  of  the  term  ;  for  the  notice  refers  only  to  reparations 
within  term,  to  which  the  lessee  is  not  tied  without  notice  three  months 
before  (/). 

But  a  covenant  to  keep  a  house  in  repair  from  and  after  the  lessor 
hath  repaired  it,  is  conditional,  and  it  cannot  be  assigned  as  a  breach 
that  it  was  in  good  repair  at  the  time  of  the  demise,  and  that  the 

(o)  iSaund.  291.n.  1.  (ft)  Ibid.  ^c_)  Ibid.  Crf;  Ibid.  320.  n.  3. 

(t)  Ibid.  32(\,  (f)  I  Sa.iDd.  64^. 


Sect.  I.]  Of  the   Action  of  Covenant.  433 

lessee  siifTerrd  it  to  decay;  for  tlic  lessor  must  repair  l)cfi)re  tlic  Ic^-ce 
18  liable  {(i). 

If  a  lessor  covenants  to  let  rertain  lands  except  such  a  close,  a  torti- 
ous  entry  by  the  lessee  inlo  Iho  excepted  close  is  said  not  to  be  a  breach 
of  a  condition  to  perform  all  covenants  conliiincd  in  the  lease  ('/). 

'J'herefore  if  //.  lets  a  house,  excepting  two  rooms,  and  is  distnrl>ed 
therein  covenant  lies  not  :  but  if  he  had  excepted  a  passage  thereto, 
atid  had  been  dislnrbed  in  that,  it  would  have  lain;  for  it  wed  lies 
for  a  thing  which  the  lessee  agrees  to  lot  the  lessor  h.ive  out  of  the  dc- 
misetl  premises  (<). 

If  a  copyholder  in  fee  makes  a  lease  for  years  warranted  by  the 
custom,  in  wliich  the  lessee  covenants  to  repair  diu'in::;  the  tmn,  a 
surrenderee  of  t lie  assignee  of  the  reversion  may  maintain  covenant 
for  non-repair  against  the  orij;inal  lessee,  althousjh  he  had  assigned  the 
term  l)efore  tlic  reversion  was  surrendered  to  the  plaintifT:  for  a  copy- 
holder is  within  the  ftat.  32  //.  S.  r.  3i  (r/). — The  doubt  in  this  case 
arose  upon  the  tenure  of  the  messuage  ;  for  if  it  had  been  freehold,  it 
>vas  agreed,  the  action  might  well  have  been  brought  by  the  assignee 
of  a  reversion  against  a  lessee  for  years  after  he  had  assigned  his  term, 
notw  itiistanding;  the  lessor  or  hLs  assigns  had  accepted  tiic  rent  irom  the 
assignee  of  the  lessee  ;  and  this  upon  the  jjeneral  words  of  the  statute 
which  gives  *'  the  gr.intees  and  assignees  of  reversions  of  lands,  tene- 
*'  ments,  and  other  hereditaments,  the  like  advantage  against  lessees 
"  by  entry  for  nonpayment  of  rent  as  tlie  lessors  or  grantors  themselves 
"  might  have,"  I'his  clause,  therefore,  is  not  confined  to  a  covenant 
fjr  the  paynu'nt  of  rent  (r). 

If  a  farm  is  out  of  repair  in  the  life  of  the  ancestor  and  aflcrward^ 
tlie  heir  brings  an  action,  he  shall  recover  damage?  for  the  wiiole  lime  ; 
but  he  ought  not  to  alkdge  a  breach  in  the  ancestor's  libitime,  because 
that  belongs  to  the  executor  (  /). 

A  recital  of  an  agreement  in  the  beginning  of  a  dcoJ  will  create  a 
covenant,  upon  which  iliis  action  will  lie. 

As,  where  on  the  demise  of  a  coal  mine,  it  was  recited  "  that  before 
the  sealing  of  indenture  it  ha<l  been  agreed  that  the  plaintiff"  sliould 
jiave  the  third  part  dug,  A'-r."  on  an  aclicm  of  covenant  being  brought 
on  this,  il  was  objected,  that  there  was  no. covenant  1hat  the  pliinliil' 
was  to  nave  the  third  part :  hwipcr  J  laic — \Verc  it  but  a  recital  tint 
before  the  indenture  they  were  agreed,  it  is  a  covenant ;  so,  to  say 
«  v.hereasit  was  agreed  to  pay  20/."  for  now  the  indenture  confirins 
the  former  agreement  by  such  declaration,  and  makes  it  a  covenant  {g). 
This  action  lies  by  the  lessor  against  the  a«:signec  of  the  lessee's  as- 
signee for  a  breach  of  covenant  that  runs  w  itii  the  laud,  though  he  bo 

(a)  1  S8Uii(1.645.  (6)  Cro   E'.i?  fi«7.  (c)  1  ?iilk    10«.  (<r  ■»  Mod.  81. 


434  Of  the  Action  of  Covenant.         [Chap.  XV. 

assignee  of  a  part  only  of  the  premises  demised  ;  for  he  is  liable  while 
he  enjoys  {n). 

A  reversioner  in  fee  of  a  house  by  one  deed,  and  of  a  lease  for 
years  of  iand  by  another  deed,  may  bring  covenant  on  a  lease  against 
the  pf  rson  to  whom  both  the  house  and  land  have  been  demised  by  the 
grantor  of  the  reversions,  although  he  derives  his  right  from  diiTercut 
titles  {b). 

Where  this  action  was  brought  on  a  covenant  "  to  permit  the  plain- 
tiif,  in  the  last  year  of  the  t(  rm,  to  sow  clover  among  the  defendant's 
barley,"  and  the  breach  assigned  was,  that  the  defendant  sowed  so 
many  acres  with  barley  and  so  many  with  oats,  without  giving  "  no- 
tice" to  the  plaintiff,  by  w^hich  he  was  prevented  from  sowing  the 
clover  and  grass  seeds. — Plea,  that  the  defendant  did  "  not  prevent,'* 
was  upon  demurrer  hoiden  good  :  for  the  covenant  made  no  mention 
at  all  about  any  notice  to  be  given  :  and  the  breach  assigned,  being 
the  not  permitting  the  plaintiif  to  sow  grass  seed,  the  single  question 
%vas,  whether  the  defendant  did  or  did  not  prevent  him  ?  If,  indeed, 
he  had  refused  to  give  notice,  or  had  given  a  wTong  notice,  it  might 
Lave  been  a  !)rcach  :  besides,  the  plaintiff  was  the  party  for  w  hose 
benefit  the  covenant  was  intended  ;  therefore  he  ought  to  have  used 
due  diligence  (c). 

In  covenant  by    an    executor    against    a    lessee,    the  declaration 
stated,  that  one  seised  in  fee  by  will  devised  to  IV.  March  for  life,  re- 
mainder in  tail  to  the  said  IV.  M.  witi:  po  ver  to  grant  leases  for  life 
reserving  the  best  rent;  that  IV.  M.  on   Jvne  9,  177S,  granted  to  the 
defendant  a  lease  for  twenty  years  and  a  q'j'a'ter  ;  IV.  M.  died  and  the 
premises  descended  to  his  son,  who  sujfered  a  recovery,  and  conveyed 
them  to  the  plaintiflF's  testator.     'Ihe  breaches  were  for  non-payment 
of  rent,  for  not  repairing,  and  for  not  putting  dung  upon  the  premises. 
The  rent,  by  the  reddendum  of  the  lease,  was  CO/,  per  an?:,  but  there  was 
a  covenant  to  render  6^/.     Lawrs,  of  counsel  for  the  plaint  ill  in  error, 
observed,  that  the  breach  assigned  was  non-])ayment  of  16/.  as  a  quar- 
ter's rent ;  which  was  more  than  the  proportion  of  GO/,  per  ann.    ac- 
cording to  the  rcdde?idian.  The  last  breach  w  as  for  not  laying  dung  up- 
on the  premises.  The  covenant  was,  that  the  dung  should  be  laid  each 
and  every  year  during  the  continuance  of  the  term.  Thgfact  was,  that 
the  plaintiH's  testator  purchased  the  estate  only  eight  days  previous  io 
the  expiration  of  the  lease.  Did  his  Lordship  therefore  think  that  he  was 
entitled  to  the  benefit  of  this  covenant  and  could  assign  a  breach  for 
the  non-expenditure  of  the  dung  which  was  to  be  laid  every  year  upon 
the  premises  ? — L.  Kenr/on,  "  Yes,  beyond   all   doubt ;  if  the  testator 
were  seised    of  the  reversion  during  the  continuance  of  the   term." 
Judgment  afhrmcd.  The  first  objection  as  to  the  breach  for  non-payment 

(a)  C.-o.  Car.  raj  (6;  Cro.  .'ac  329.  (c)  Cowp.  125, 


Sect.  1.]  Of  the  Aclion  of  Coroianl.  135 

of  rent  was  abaiuloned,  it  appearing  Hial  in  the  Jiulgcs  copies  of  the 
papei-hook,  the  rent  reserved  was  01/.  'J'he  damai^rs  wen;  asfchscj 
severally  on  each  breach,  which  (the  counsel  ol)servcd),  atrorded  a  pre- 
suniptinii  tiiat  Hit  defendant  in  error  iJiouijht  sonic  of  them  not  sup- 
portable (d). 

The  tenant  is  not  estopped  by  tlie  description  of  the  lands  in  the. 
lease. 

Thus  in  covenant  tJie  plaint iQ'declarrd,  that  whereas  h;:  had  den.i'e.l 
to  tlie  defendant  a  house  and  t^everal  parcels  of  land,  wliicli  utre  ])arli- 
cidarly  described,  some  to  be  arable,  sonic  meadow,  and  some  pastiirr, 
an<l  especially  two  meadows,  called  Jmihi's  r.ieidons,  the  dcft-ndant 
inenanted  to  pay  5/.  per  acre  for  every  acre  of  meadow,  winch  he 
should  plough  up  during  the  lease  ;  and  breach  assigned  in  ploiighing 
up  Laiiic's  meadow,  A'v .    Plea  ;  that  for  sixty  years  past,  Lainc's  iiita- 
dow  has  been  arable  land,  and  by  times  ploughed  up  and  sowed,  ixi^  the 
tenants  thereof  thought  proper,  and  traverse,  that  at  the  time  of  mak- 
ing  the  lease  it  was  meadow  ground,  as  is  supposed  in  the  declaratiojj. 
To  this  the  plaintiff  demurred,  on  the  ground  that  tiie  defendant  was 
estopped  to  say  that  what  is  in  the  lease  called  meadow,  is  of  any  other 
nature.     Sed  per  Curiam  ;  The  indenture  is  to  be  construed  according 
to  the  intent  of  the  parties,  and  here  the  intention  was  only  to  covenant 
against  the  ploughing  up  real  meadow.     Every  body  knows  tliat  in 
deeds  of  this  nature  tlie  parcels  are  very  often  taken  from  former  deeds, 
without  regard  to  every  alteration  of  the  nature  of  the  land  :  and  it 
■would  be  the  hardest  case  in  the  world,  that  if  tliis  land  had  been  ara- 
ble at  one  time  and  laid  down  at  another,  the  tenant  should  be  con- 
cluded by  calling  it  by  either  of  those  descriptions.     This  is  not  tlie 
essence  of  a  deed,  as  what  is  struck  at  by  nil  luilmit  in  Icncmcntis.     It 
would  be  carrying  estoppels  too  far  should  we  extend  them  to  this 
case  ;  therefore  we  are  all  of  opinion,  that  the  defendant  had  a  right 
to  try  the  fact,  whether  it  was  ancient  meadow  or  not  (Jj). 

To  breach  of  covenant  for  not  repairing,  vS;c.  the  lessee  cannot  plead 
in  bar  that  the  lessor  had  only  an  equitable  estate  in  the  preiniLCS,  for 
that  is  tantamount  to  nil  habuit,  Src.  But  Sctnb.  he  is  not  estopped 
from  shewing  that  the  lessor  was  only  seised  in  right  of  his  wife  for  her 
life,  and  that  she  died  before  the  covenant  broken  ;  because  an  interest 
passed  by  the  lease  f  r). 

An  assignee  in  covenant  need  not  name  himself  a'-'^lj^ncc  v.hcrc  he 
shews  a  legal  assignment  {d). 

Thoutjh  a  covenant  be  joint  and  several  in  the  term-:  of  it,  yet  if  the 
interest  and  cause  of  aclion  be  joint,  the  action  must  be  brMui^ht  by  all 

(a)  V  Dovlt.M  T    4S  u.  3.  T '«  .M55.  C*;  2  Sir  610  ('    hi.  T.    *l: 

(rf;  lUitf.  :»o. 


/tivO  Of  the  Adion  of  Covenant,  [Chap.  XV. 

the  covrnantecs  :  and  on  the  other  hand,  if  the  interest  and  cause  of 
action  l)c  several,  the  action  may  be  brought  by  one  only  {a).  So, 
thoiii,'ii  a  nnn  covenant  with  t^\o  or  more  jointly,  yet  if  the  interest 
and  cause  of  action  of  the  covenantees  be  several  and  not  joint,  the 
cov^.iant  shall  be  taken  to  bs  several,  and  each  of  the  covenanteiss  may 
bring  an  action  for  his  particular  damage,  noluithbtaiidhig  the  word? 
of  tiie  coA-enant  are  joint  (i). 

But  where  two  persons  covenant  /o/?z/(y  and  severally  ■with  another, 
the  covenantee  may  brini^  an  action  against  one  of  the  covenantors  only, 
though  tlieir  interest  in  the  subject-matter  of  the  covenant  be  joint :  as, 
-»vhere  A.  lets  land  to  B.  and  6'.  and  they  covenant  jointly  and  severally 
^uth  the  lessor  to  pay  the  rent  or  the  like,  he  may  bring  an  action 
against  either  of  the  covenantors  ;  because  they  are  sureties  for  each 
other  for  the  due  performance  of  the  covenants,  and  it  is  as  competent 
for  each  of  them  to  covenant  for  the  other,  as  it  is  for  a  stranger  to  co- 
venant for  !)oth,  which  is  a  usual  thing  (c). 

Even  if  the  covenant  were  joint,  and  an  action  brought  against  one 
of  the  covenantors,  he  could  take  advantage  of  it  only  by  a  plea  in 
abatement. — For  where  there  are  several  covenantees  or  obligees,  and 
one  of  them  only  brings  an  action,  without  averring  iu  the  declaration 
that  the  others  are  dead,  the  defendant  may  either  take  advantage  of  it 
at  the  trial  as  a  variance  upon  the  plea  of  r.on  est  factum,  or  pray  oyer 
of  the  deed  and  demur  generally.  But  where  an  action  is  brought. 
against  one  of  several  joint  covenantors  or  obligors  the  defeiidant  can 
only  take  advantage  of  it  by  a  plea  in  abatement ;  and  though  it  should 
appear  upon  the  record  that  there  are  others  who  ought  to  be  joined  as 
defendants,  yet  that  will  not  be  error  {d). 

For  wherever  any  person  W'ho  ought  to  have  been  joined  as  a  defend- 
ant, is  omitted,  it  is  pleadable  in  abatement  only  :  the  reason  is  because 
such  pica  gives  the  plaintiff  a  better  writ,  which  is  the  true  criterion  to 
distinguish  a  plea  in  abatement  from  a  plea  in  bar  {e). 

As  to  w  hat  covenants  shall  be  construed  to  be  precedent  or  not,  it 
has  been  laid  down,  that  the  dependence  or  independence  of  covenants 
was  to  be  collected  from  the  sense  and  meaning  of  the  parties,  and  that, 
however  covenants  might  be  in  a  deed,  their  precedency  must  depend 
on  the  order  of  time  iuAvhich  the  intent  of  the  transaction  required  their 
performance. — Conditions  therefore  are  to  be  construed  to  be  either  pre- 
cedent or  subsequent,  according  to  the  fair  intention  of  the  parties  to 
1)6  collected  from  the  instrument,  and  technical  words  should  give  way 
to  that  intention  (/). 

Therefore,  where  in  a  lease  for  seven  years,  containing  the  usual  co- 

« 

»  1  S4iind.  153.  (6)  Ibid.  n.  1.  (c)  I1»W.  5  T.  R.  522 

•V,    ;   S»uijd.  153.  n.  1.  \t)  U;id  L'43   n.  t.     1  Sti-  563-  (/)  BOUJ.  865  ifl  s. 


Sect,  l.j  Uf  the  Action  of  Covcnanf.  i37 

venants  that  llic  lessee  should  pay  \\n:  rciil,  keep  the  preniibcs  in  repair, 
Ss.c.  a  proviso  was,  that  the  lessee  nuy;ht  deter  mine  the  term  at  the  end 
of  Ihc  first  three  nr  five  years,  givinj;  tix  months' previous  notice,  and 
that  then  from  and  after  the  expiration  of  such  notice,  and  payment 
«f  all  rents  and  duties  to  be  paid  hy  the  lessee  and  performance  of  all 
his  covenants  luifil  tlie  end  of  the  three  or  five  years,  tlu;  indenture 
^•hollld  cease  and  be  utterly  void.  Ruled  that  the  payment  of  rent  and 
performance  of  the  otlier  covenant?,  are  conditions  precedent  to  the  les- 
see's determination  of  the  term  at  tiu'  erKi  ni"  the  first  three  years,  and 
that  his  merely  givinj;  six  months'  notice,  expirin:;  u  ithin  the  first 
three  years,  is  not  sufficient  for  that  purpose  {ay 

I'laintifl'  covenanted  to  sell  defendant  a  schnol-JiouFc,  Si-c.  and  to 
convey  the  same  to  him  on  or  before  the  first  of  Auifusty  ITUT,  and  to 
deliver  up  the  i)osscssion  to  him  on  the  2Uh  of  June,  ITUO;  and  in 
consideration  thereof,  tlie  defendant  covenaiited  to  i)ay  tlic  plain! if]"  1:JU'. 
on  or  before  the  said  first  of  August,  17'jr:  it  \vas  hoiden,  that  the 
covenant  to  convey,  and  that  for  the  payment  of  the  money,  were 
d"j)endant  covenants  ;  and  that  the  plaintiit  could  not  maintain  an  ac- 
tion for  the  120/.  without  averring  that  he  had  conveyed  or  tendered  a 
conveyance  to  the  defendant.  Were  it  to  liold  otherwise,  in  such  a 
case  as  the  present,  the  i^reatest  injustice  miglit  be  done  ;  for  supposiri:^, 
in  the  instance  of  a  trader  who  liad  entered  into  such  a  contract  of  the. 
sale  of  an  estate,  that  between  the  makinc^  of  the  contract,  and  the 
final  execution  of  it,  he  were  to  become  a  bankrupt,  the  vendee  juight 
be  in  the  situation  of  having  had  payment  enforced  from  him,  and  yet 
be  disabled  from  procuring  the  property  for  wliich  he  had  paid  (^). 

But  where  ./.  covenanted  to  build  a  house  for  li.  and  finish  it  on  or 
before  a  certain  day,  in  consideration  of  a  sum  of  money,  which  B.  co- 
venanted to  pay  to  A.  by  instalments,  as  the  building  should  proceed  ; 
the  finishing  of  tlie  house  was  held  not  to  be  a  condition  precedent  to 
the  payment  of  the  money,  but  that  the  covenants  were  independent ; 
wherefore  A.  might  maintain  an  action  of  debt  against  B.  for  the  whole 
sum,  tliough  the  building  be  not  finished  at  the  time  apjwinted  {(). 
It  is  accordingly  laid  down  that,  if  a  day  be  appointed  for  tlie  payment 
of  the  money,  and  the  day  is  to  happen  before  the  thing  can  be  perform- 
eil,  an  action  may  be  brought  for  the  mon^y  before  the  thing  be  done  ; 
for  it  appears  that  the  party  relied  upon  his  leir.edy,  ami  intended  not 
to  make  the  perfornance  a  condition  j^recedent.  So  in  this  dxn'  by  the 
terms  of  the  contract,  two  several  sums  of  money  were  io  l)e  paid  be- 
fore the  thing  to  be  dor-  was  ilone.  The  plaintilT-  therefore  were 
clearly  entitled  to  this  action  lor  the  money  without  averring  perform, 
ance,  and  the  defendant  to  his  remedy  on  the  covenants  {d). 

(a)  G  T.  R.  r>Ci.  (h)  8  T.  U.  n.:r..  (DTK    Ml    r!S.» 

i<i\  \  Salk.  era     lIO    nivm.  663.    Com.  R. 'J8.     13  Mod   tK 


433  Of  the  Action  of  Covenant,  [Chap.  XV. 

No  precise  technical  words,  however,  are  required  in  a  deed  to  make 
a  stipulation  a  condition  precedent  or  subsequent  ;  neither  does  it  de- 
pend on  the  circumstance,  whether  the  clause  is  placed  prior  or 
posterior  \v\  tJie  deed,  so  that  it  operates  as  a  proviso  or  covenant,  for 
the  same  words  have  been  construed  to  operate  as  either  the  one  or  the 
other,  according-  to  the  nature  of  the  transaction  :  the  merits  therefore 
of  a  question  of  this  kind,  must  depend  on  the  nature  of  the  contract, 
and  the  acts  to  .be  performed  by  the  contracting  parties,  and  any  sub- 
sequent facts  disclosed  on  the  record,  m  hich  have  happened  in  conse- 
quence of  the  contract  (a). 

In  covenant,  the  plaintiiT  may  assign  as  many  breaches  as  he  wilL 
Soindeljt  on  bond  for  the  perfprmance  of  covenants,  by  stat.  8  ^Sc  9 
W.  3.C.  11  (b). 

On  a  cov  cnant  in  Londonio  repair  houses  in  Surrt/,  the  breach  must 
be  assigned  at  the  place  where,  i^c.  viz.  at  London  (r). 

Where  there  has  been  an  assignment  by  deed,  it  is  sufficient  to 
prove  the  assignment  by  the  subscribing  witness  without  calling  the 
witness  to  the  original  deed  ;  for  the  assignment  having  adopted  the 
original  deed  in  all  its  parts,  it  is  become  as  one  deed  (r/). 

In  covenant,  if  some  breaches  are  weil  assigned  and  some  not,  and 
there  is  a  demurrer  to  the  whole  declaration,  the  plaintiiT  shall  have 
judgment  for  those  breaches  which  are  well  assigned  ^e). 

A  variance  in  setting  out  one  of  several  covenants  in  a  lease  on  which 
breaches  were  assigned,  viz.  the  Cellar  Beer  field,  instead  of  J/ler  Beer 
Field,  being  considered  as  part  of  the  description  of  the  deeid  declared 
on,  though  the  piaintilf  waived  going  for  damages  for  the  breach  of 
that  covenant,  is  fatal  (/). 

To  a  count  in  covenant  charging  the  defendant  as  executors  for 
breaches  of  covenant  by  their  testator  as  lessee,  who  had  covenanted 
for  himself,  executor^,  and  assigns,  may  be  joined  another  count 
charging  them  that  alter  the  death  of  testator  and  their  proving  bis 
will,  and  during  the  term  the  demised  premises  came  by  assignment  to 
D  A.  against  whom  breaches  were  alledgcd,  and  concluding  that  so 
neither  the  testator  nor  the  defendant  after  his  death,  nor  D.  A.  since 
the  assignment  to  him  had  kept  the  said  covenant,  but  had  broken 
the  same.  And  pleiLe  odimiistravcrunt  may  be  pleaded  to  both 
counts  {i^). 

On  a  breach  that  the  house  was  not  in  repair,  a  plea  that  the  plain- 
tiff agreed  that  the  defendant  should  employ  a  person  four  days  in  and 
about  repairing  the  house,  in  satisfaction,  is  bad  ;  for  the  defendant 
Vias  obliged  to  do  the  repairs  by  the  original  covenant  Qi). 

(a)  1  T.  R.  r,43.  (fi)  Cro.  Car.  175.  (c)  Cro.  Jac.  446. 

(dj  !   Esp.  R.  217.  (e)  I   hajiid.  236.  D.  9.  (/)  9  Last,  IBB. 

<?)  10  East,  313.  (t)  4  Mod.  68. 


Sect.  I.]  Of  the  Action  of  Corcnnnl.  .139 

If  I  covenant  fo  leave  all  tlic  timlicr  nliicli  is  j^rowini  on  Xhv.  land 
vljcn  I  lakf  it,  and  at  tiie end  of  lli<;  term  I  cut  it  down,  luit  leave  it 
there,  it  is  breach  of  the  covj-nant :  for  a  covenantor  shall  not  defeat 
the  intent  nf  iiis  covenant,  which  is  ever  to  Ik-  talicn  must  strongly 
against  Ijiinscii  (a). 

A  covenant  is  not  a  duly  nor  a  cause  of  art  i. .11,  ti.'l  it  he  broken  ; 
and  therefore  it  is  not  discharged  l>y  a  release  of  all  actions  ;  and  w  hen 
it  is  broken,  the  action  is  not  foiunlcd  merely  upon  th'-  sjucially,  as  if 
it  uerc  a  duty,  but  savours  of  trespass ;  and  tlicreljie  an  accord  is  a 
good  plea  to  it ;  and  ends  in  damajjir;.-  {h). 

Hut  if  the  one  parly  disable  himselT  from  pprfjrmin^:  his  part,  tlic 
other  parly  is  not  obliged  to  oiler  performance  of  his  part,  but  may 
liave  an  action  immediately  (r). 

As,  where  the  lessor  covenanted  with  the  lessee  to  make  liim  a  new 
lease  on  surrender  of  the  whole  within  twenty  years,  and  before  the 
twenty  years  expired  the  lessor  aliened  tiie  land  to  another  by  line: 
it  was  adjudged,  that  the  action  lay  immediately,  for  he  had  disabled 
hims  If  to  accept  a  siu'render,  and  so  to  make  a  naw  lease  (d). 

If,  however,  a  man  have  lands  for  a  term  of  years,  and  covenant  to 
leave  them  in  as  good  a  plight  as  he  found  them,  although  he  pull 
down  the  houses,  the  lessor  shall  not  hive  an  action  of  covenant  b' lore 
the  end  of  the  term  ;  for  th^  covenant  lias  relation  1  hereto,  and  hr  may 
rebuild  them. — But  if  lie  do  waste  in  wood,  covenant  lies  :  for  he  can- 
not repair  it  (r). 

If  the  defeuilants,  however,  prevent  tlie  ])erf  )rminr.e  of  a  condition 
precedent  by  Iheir  i.eglcct  and  default,  it  is  equal  to  p''rf.)rui  nice  by 
the  plaint iiT's  (/). 

Perrormance  ploadcd  otherwise  tlian  in  tlje  terms  of  the  covenant, 
1%  bad  (^),  even  on  general  demurrer  to  the  plea  of  "  accord  and  &itis- 
faction,"  in  covenant  (//),  where  the  damages  are  uncertain  and  to 
be  recovered,  a  lessor  thing  may  be  done  in  satisfaction,  and  there  "  ac- 
cord and  satisfaction"  is  a  good  plea  ;  as  to  an  action  on  a  covenant  to 
repair  (<). 

On  a  covenant  that  runs  wltli  flie  land,  evidence  that  the  deftmdant 
is  in  as  heir  will  sujjport  a  declarati  >n  charging  hiuias  assignee  (A). 

The  lessee  of  a  coal  mine,  who  covenants  to  pay  a  certain  sliare  of 
all  such  sums  of  money  as  the  coals  shall  sell  for  at  the  pit's  mouth, 
is  not  liable  under  that  covenant  to  pay  to  the  lessor  any  part  of  the 
money  produced  by  the  sale  of  the  coals  elsewhere  than  at  the  pit's 
mouth  ;  and  evidence  of  the  lessee's  having  acc3un!ed  with  t.;e  lessor, 

,'.x)  I  F.np.  X.  p.  2fl'.  (6)  Shep.  Touch.  IGI  n.  1                  'c)   t  Tsp.  \.  T.  28V 

(,h  Cro   Eliz.  418.  (•)  V.  N    R   Mb   K.  U  vidU.  2  ni.  Rpp  8i3.  aiiie.  C.  X  a  ii. 

r/)  I  T.  a.  6M  U)  I  Bot  «c  Pul.  453.  (*;  4  MoJ.  83.           .     (i)  Cro.  i%<:  9.\ 
I-    « T   n   75 


4 10  Of  the  Action  of  Covenant.         [Chap.  XV. 

and  paid  him  the  share  of  the  money  produced  by  the  sale  of 
coals  elsewhere,  is  not  admissible  to  explain  the  intention  of  the 
parties  (<-/). 

In  covenant  on  an  indenture  of  demise  of  a  coal  mine  made  on  the 
8th  of  July,  1805,  reserving  one-fourth  of  the  coal  raised,  or  the 
value  in  money,  at  the  election  of  the  lessor,  and  if  the  one-fourth 
fell  short  of  400/.  per  annum,  then  reserving  such  additional,  rent  as 
would  make  up  that  annual  sum,  to  be  rendered  monthly  in  equal  por- 
tions :  held  that  the  lessee  having  elected  to  take  the  whole  in  money, 
may  declare  for  two  years'  and  three  months'  rent  in  arrear :  but  even  if 
the  money  rent  were  reserved  annually,  the  plaintiff  may  remit  his 
claim  as  to  the  three  months'  rent,  and  euter  up  judgment  for  the  two 
years'  rent  only,  and  having  first  well  assigned  a  breacli  of  the  c«ve- 
iiant  that  the  lessees  had  not  yielded  monthly  the  one-fourth  or  the 
value  in  money,  >Scc.  but  had  refused,  ^-c  Held,  that  it  would  not 
hurt  on  general  demurrer  that  the  count  went  on  to  alledge  that  before 
the  exhibiting  of  the  plaintiff's  bill,  viz.  on  the  1st  of  Nov.  1797, 
900/.  of  the  rent  reserved  for  two  years  and  three  months  was  due 
and  in  arrear  ;  for  that  date  being  before  the  lease  made,  and  therefore 
impossible  in  respect  to  the  subject-matter,  must  be  rejected  ;  and  the 
general  allegation  that  before  the  exhibiting  of  the  plaintiff's  bill  900/. 
of  the  rent  reserved,  8rc.  was  due,  is  sufficient.     10  East.  139. 

If  the  breach  of  a  covenant  be  assigned  thus :  "  That  the  defendant 
"  has  not  used  the  farm  in  an  husbandmanlike  manner,  but  on  the 
*'  contrary  has  committed  waste,"  the  plaintiff  cannot  give  evidence 
of  the  defendant's  using  the  farm  in  an  unhusbandraanlike  manner,  if  it 
do  not  amount  to  waste. — On  the  former  words  of  the  breach,  had 
they  stood  alone  such  evidence  might  have  been  given  (b). 

In  covenant  for  non-repair  (as  for  not  repairing  hedges  and  not 
ploughing  land)  the  writ  of  enquiry  shall  be  to  the  place  where  the 
lease  was  made  (c). 

Covenant  lies  against  an  assignee  on  a  covenant  not  to  plough,  al- 
though assigns  are  not  named  in  the  deed:  for  it  runs  with  the 
land  {d). 

So,  if  A.  lease  lands  to  B.  and  B.  covenants  to  pay  the  rent,  repair 
houses,  8rc.  during  the  said  term,  and  afterwards  assigns  to  C,  the  as- 
signee is  bound  to  perform  the  covenants  during  the  term  of  the  first 
lessee,  tho^igh  assignee  be  not  named  ;  because  the  covenant  runs  with 
the  land  made  for  the  maintenance  of  a  thing  in  esse  at  the  time  of  the 
lease  made  (6"). 

So,  if  A.  demises  to  B.  several  parcels  of  land,  and  the  lessee  cove- 

(a)  5  T.  R.  561.  (6)  n  T.  R.  307.  («)  Cro.  Jac.  1!.  {d)  Ibid,  125. 

;»;  Bac.  Abr.  tit.  "Covenant."  [E.  3. J 


Sect.  I.]  Of  the  Action  of  Covenant.  4U 

nants  for  him  and  his  assigns  to  repair,  &c.  and  after  the  lessee  assii^ns 
to  L).  all  his  t-fatc  in  parcel  of  the  land  demised,  and  I),  does  not 
repair  tliat  to  liini  assigned,  liie  lessor  may  have  an  action  of  covenant 
against  D.  the  assignee  («)• 

For  a  covenant  may  be  dividahie  and  follow  the  land  ;  wliereof 
an  action  of  covenant  will  lie  against  an  assignee  of  part  of  the  thing 
dtmiseil  (/v). 

If  a  lessee  covenants  that  he  and  his  assigns  will  repair  the  house 
demised,  and  tiie  lessee  grants  over  the  term,  anil  the  assignee  docs 
not  repair  it,  an  action  of  covenant  lies  cither  against  the  assignee  at 
conmion  law,  because  this  covenant  runs  wifii  the  land,  or  it  lies 
against  the  lessee  at  the  election  of  the  lessor,  u  ho  may  charge  both, 
but  c.vt.cution  shall  he  agahist  one  of  them  only  ;  for  if  he  take  both  in 
execution,  he  that  is  last  taken  shall  have  an  audita  querela  {(). 

So,  the  executor  of  a  lessee  is  liable  to  the  grantee  of  the  reversion 
on  such  a  covenant ;  though  the  lessee  may  have  assigned  his  term  and 
the  uraritee  have  accepted  rent  of  the  assignee  (ri). 

For  tilt;  personal  representative  of  a  lessee  for  years  is  his  assignee ; 
ami  a  coven  uit  to  repair  runs  with  the  land,  as  it  is  to  be  performed 
on  it,  and  therefore  binds  the  assignee  (r).  iao  witii  respect  to  a  cove- 
nant to  make  further  assurance  (/). 

So,  if  there  is  a  covenant  which  runs  with  the  land  and  the  lessee 
assigns  over,  and  the  assignee  dies  intestate,  the  lessor  may  have  cove- 
nant against  the  administrator  of  the  assignee  and  dec kre  against  him 
as  assignee  :  for  sucli  coven mts  bind  those  who  come  in  by  act  of  law, 
as  \sv\\  as  by  act  of  the  parties  (p-). 

As  to  the  extent  to  which  the  lessee  or  assignee  is  liable  in  covenant, 
there  isaconsideral)lcdiilercncc  (A). 

1.  The  lessee  has,  from  his  covenant,  both  a  privity  of  contract  and 
of  estate  ;  and  though  he  assigns,  and  thereby  destroys  the  privity  of 
estate,  yet  the  privity  of  contract  continues,  and  he  is  liable  in  covenant 
notwithstanding  the  assignment  (/). 

2.  But  the  assignee  comes  in  only  in  privity  of  estate,  and  therefore 
is  liable  only  while  he  continues  to  be  in  possession,  and  therefore  hai 
the  legal  estate:  except  in  the  case  of  rent,  for  which  though  he  assii^u 
over  he  is  liable  as  to  the  arrears  incurred  before  as  well  as  during  his 
enjoyment ;  and  such  assignee  was  made  liable  in  equity,  though  th«5 
privity  of  estate  was  destroyed  at  common  law  (A). 


(n)  Bac.  Abr.  lit.  "CoTtoaDt"  [E  3  ]  (b)CTo.  Cv.TSi. 

(e)  Cro.  Jac  SI'S,  (d)i  Mod.  89.  («;  1  \jA.  Riytii   553. 

(/)  Cro  Car  S03.  (^  K»i..  N    T.  29a  (A)  C.  XI.  anlc. 

(0  Doug.  458.  761.  (k)  U»c.  Abr  UU  "  Ce*eitoL"(E  *•)    I  B<K.  k  PuU.  2j 

1  El^es  R,580.  Stooev.  Evvu,  anIe.C.  III.  a.  U. 


442  Of  the  Action  of  Covenant,       [Chap.  XV. 

Assignees  of  a  bankrupt  are  not  liable  for  the  rent  of  premises 
assigned  to  them  by  the  comraissioners  unless  they  take  posses- 
sion (a). 

Where  assignees  of  a  bankrupt  advertised  a  lease  of  certain  premises 
of  which  the  bankrupt  was  lessee,  for  sale  by  auction,  without  stating 
themselves  to  be  the  owners  or  possessors  thereof,  and  no  bidder  oifer- 
ing,  they  never  took  possession  in  fact  of  the  prf  mises :'  held  that  this 
was  no  more  than  an  experiment  to  ascertain  the  value,  whether  the 
lease  were  beneficial  or  not  to  the  creditors,  and  did  not  amount  to  an 
assent  on  the  part  of  the  assignees  to  take  the  term,  or  support  an 
averment  in  a  declaration  in  covenant  against  them  by  the  landlord,  that 
all  right,  title,  interest,  di-c.  of  the  bankrupt  in  the  premises  came  to 
defendants  by  assignment  thereof  (6). 

Where  the  breach  assigned  was  in  two  covenants,  and  it  appeared* 
that  for  the  one,  the  plaintiii  had  no  cause  of  action,  and  for  the  other* 
a  good  cause,  and  issue  was  joined  on  both,  and  found  for  the  plain- 
tiii" in  both  and  damages  entirely  assessed  ;  the  plaintiif  could  not  have 
judgment. 

(c)  To  an  action  of  covenant  for  not  pulling  down  part  of  a  house 
called  The  Cherry  Tree  at  South-gate,  in  Middlesex^  which  had  been  let 
by  the  plaintiii  to  the  defendant's  testator ;  the  plea  was  that  the  tes- 
tator had  repaired  and  beautified  other  parts  of  the  premises,  at  the 
plaintiif' s  request,  which  the  plaintiff  had  accepted  in  satisfaction  ;  re- 
plication, protesting  that  the  piaintiil  did  nol  request  the  testator,  to 
repair  ;  and  replying  that  he  did  not  accept  the  rcpnirs  in  satisfaction. 
It  appeared  that  the  plaintiii' had  demised  Ihehonse  to  the  testator,  who 
had  covenanted  to  pull  down  the  corner  of  it  for  the  purpose  of  letting 
the  plaintiff  make  a  cartway  over  the  piace  where  the  corner  of  the 
house  stood.  Lord  Keni/on. — The  plaintiif  has  demised  the  house 
called  the  Cherry  Tree,  and  consequently  the  ground  on  which  it  stood. 
The  way  he  claims  is  to  be  made  over  part  of  the  ground  on  which  the 
house  so  demised  stood.  Every  deed  is  to  be  taken,  most  strongly 
against  the  grantor.  If  the  corner  of  the  bowse  is  pulied  down,  the 
plaintiff  cannot  use  the  ground  en  whicn  it  stood,  because  it  passed  by 
the  demise  ;  and  not  having  reserved  in  the  deed  any  right  to  use  it 
imless  the  plaintiff  had  so  reserved  it,  he  cannot  claim  it  as  a  way  but 
by  prescription :  but  as  the  testator  did  covenant  to  pull  dow  n  the 
corner  of  the  house,  and  has  not  done  so,  there  must  be  a  verdict  for 
the  plaintiff,  but  only  for  nominal  damages  (r/). 

As  to  bringing  money  into  Court  in  this  action  :   where  there  are  se^ 


(a)  Peake's  R.  239.  (h)  7  East,  335.  (*)  2  Esp.  R?p-  690. 

(<t)  1  H.  Bl.  27. 


J?ect.   II.]  Of  the  Action  of  Assumpsit.  443 

vcnl  counts  or  l)rcaclics  in  (he  lUcl.iration,  aiul  afi  to  some  of  thcru, 
the  dcrt'iicliuit  may  hrini;  money  into  Court,  Init  not  as  to  the  otiurs, 
he  may  ohtain  a  rule  for  bringini?  it  in  specially.  Thus,  where  in  co- 
venant upon  a  lease  for  non-payment  of  rent,  and  not  repairini,',  &c 
the  Court  mule  a  rule,  that  upon  paymmt  of  what  sliould  appear 
to  Ik;  tluc  for  rent,  the  procectlitii;;?  as  to  that  should  he  stayed  ;  and  as 
to  the  other  breaches,  that  the  plaintiii'  should  proceed  as  he  should 
think  fit  (rj). 

K<  sp'  cting  relief  by  bill  in  equity,  tlie  party  cannot  peek  for  sjKiciGc 
performanceof  a  covenant  to  repair  (Z»). 

But  upon  a  covenant  to  build,  the  covenantee  is  clearly  entitled  to 
apply  to  a  Court  of  equity  for  a  specific  performance  ;  for  to  l>uild  is 
one  entire  tliint?,  anci  if  not  done  prevents  that  tsecurity  for  his  rent  to 
which  the  les?ur  is  entitled  by  virtue  of  a  building  lease  (r). 

Where  a  prrf^on  on  a  buiUlin^  lease  covenants  to  new  build  tliC  l)rick 
messuaj^es  on  the  premises,  the  rebuilding  some  and  repairing  otiirrs 
was  held  not  to  l)e  suflTicient  to  answer  the  covenant,  but  the  lessee  must 
rebuild  the  whole  (d). 

Section  II.     Of  the  Action  of  Assumpsit. 

If  the  lease  be  l)y  writing  without  deed,  or  by  parol  demise,  the 
landlord's  rciuedy  for  the  breach  of  such  stipulations,  as  the  terms  of 
the  agreement  express  or  the  contract  imj)li(?,  by  an  action  of  as- 
sumpsit ;  for  an  action  upon  tlie  case  on  assumpsit^  (or  as  it  is  also 
called  on  promises)  is  an  action  which  the  law  gives  the  party  injured 
by  tlie  breach,  or  non- performance  of  a  contract  legally  entered  into; 
it  is  founded  on  a  contract  either  cAprcss  or  implied  by  law,  and  gives 
the  party  damagef  in  proportion  to  the  loss  he  has  sustained  by  the  vio- 
lation of  the  contract. 

An  agreement  to  leave  a  farm  as  lie  found  it,  is  sn  ac:rrement  to 
leave  it  in  tenantablc  repair,  if  he  found  it  so  ;  and  will  maintain  a  de- 
claration so  laid  (r). 

In  an  action  against  a  tenant  upon  promises  that  he  would  ocrupy 
the  farni  "  in  a  good  and  husl)an(lmanlike  manner,  according  to  the 
custom  of  the  country  ;"  an  allegation  that  he  had  treated  the  estate 
contrary  to  "  good  husbandry  and  the  cubtoju  of  the  country,"  U 

(a1  1  Tidd's  Prwt.  564.  (tjaAttS:''  (<•)  Ibid.    3  Vev   1?4. 

J'  ;  At';    S'.'      J  Br    U    («   co'tl'a  •       {>)  V  ID    I{    i*^^ 


444  Of  the  Action  of  Assumpsit,  [Chap.  XY. 

proved  by  shewing  that  he  had  treated  it  contrary  to  the  prevalent 
course  of  husbandry  in  that  "  neighbourhood,"  as  by  tilling  half  his 
farm  at  once,  when  no  other  farmer  there  tilled  more  than  a  third, 
though  many  tilled  only  a  fourth :  and  it  is  not  sufficient  to  shew  any 
precise  definite  custom  or  usage  in  respect  of  the  quantity  tilled  («). 

In  special  assumpsit  against  the  tenant  for  not  performing  his  agree- 
ments, the  estate  of  the  lessor  is  an  immaterial  averment,  if  the  tenant 
has  had  the  enjoyment  of  his  lease.  For  the  true  rule  is,  that  on  the 
general  issue  in  an  action  on  the  case,  all  material  averments  are  denied 
and  put  in  issue,  but  nothing  else.  The  estate  of  the  piaintilf  is  not  a 
material  averment;  for  a  lease  by  a  tenant  in  tail  (as  the  piaintilf  in 
this  case  was)  is  not  void,  but  only  voidable  by  the  issue  in  tail :  it  had 
not  been  nor  could  be  avoided  during  the  life  of  the  lessor  ;  nor  does  it 
lie  in  the  mouth  of  the  defendant,  who  has  enjoyed  the  fruit  of  it,  to 
dispute  its  validity.  That  therefore  being  an  immaterial  averment, 
the  plaintiif,  (notwithstanding  he  was  mistaken  in  his  title)  was  held  to 
be  entitled  to  recover  on  the  first  count  of  the  declaration,  which  stated 
that  the  lands  descended  to  him  in  fee  on  the  death  of  his  father,  as 
son  and  heir  (^}. 

A  tenant  at  will  even  is  bound  to  keep  the  premises  in  repair,  and 
to  use  the  land  fairly  according  to  the  course  of  husbandry  which  the 
nature  of  the  soil  may  require,  and  the  custom  of  the  country  points 
out  as  being  proper.  It  seems  indeed,  that  those  covenants  which  are 
implied  in  a  lease,  (of  which  we  have  in  a  preceding  part  of  this  work 
made  more  particular  mention,)  subsist  between  landlord  and  tenant 
as  resulting  froni  their  relative  situation,  by  whatever  means  that  situa- 
tion is  created  ;  so  that  the  breach  of  any  of  them  is  wrong  for  which 
the  law  affords  a  remedy :  an  action  on  the  case  therefore  will  lie  for 
damages  arising  from  the  neglect  to  repair  (r). 

An  agreement,  (as  has  been  before  observed)  though  not  under  seal, 
may  be  declared  on  specially,  in  which  case  it  may  be  said  to  bind  the 
parties  by  its  own  force  ;  or  the  plaintiff  may  in  some  instances  declare 
generally,  and  give  the  written  contract  in  evidence  {d). 

A  tenant  from  year  to  year  is  bound  (as  has  been  observed)  only  to 
fair  and  tenantable  repairs,  so  as  to  prevent  waste  or  decay  of  the  pre- 
mises, but  is  not  bound  to  do  substantial  and  lasting  repairs  (c). 

By  an  agreement  between  plaintiffs  and  defendant ;  the  defendant 
was  to  accept  of  the  assignment  of  the  lease  of  a  term  from  the 
plaintiffs,  and  to  take  the  fixtures  and  crops  at  a  valuation  ;  he  was 
afterwards  let  into  possession  of  the  fixtures,  and  the  crops  were  va- 

(n)  4  Ea'^fg  R.  154.  (6)  4  East's  U.  154.  (e)  Co.  Lit.  56.  b.  n.  2. 

(rf;6T.  K.  319  '  (e)  2  Esp.  R.  53a 


SfC'l,   (I.]  Of  tilt  .Iclittn  of  Aisum/'sit.  4  4J 

lut'd  to  liini  ;  Imt  the  lease  was  ru'V'r  assii^neil  :  held  lliat  indebitntw 
assumfisit  would  not  lie  fur  (he  price  of  the  fixtures  and  crops,  and 
that  liic  plaint iil't)  only  remedy  was  by  a  special  action  on  the  agree- 
ment {(i). 

Where  an  aL;rcem(nt  Ix  Iw  ecu  an  out-L^oni^  and  an  iii-coniinp;  tenant 
Avas  lliat  the  latter  f-lioiilil  hny  the  hay,  ^<c.  upon  the  iann,  and  that 
(he  former  should  allow  to  the  latter  the  expense  of  repairin;^  (he  p;a(es 
and  fences;  atid  (iiat  the  value  of  the  hay,  !v.c.  and  of  the  repairs 
should  he  settled  hy  third  jiersons ;  held  that  the  halance  settled  to  be 
due  for  the  hay,  A'-c,  after  deduct  inijj  (lie  value  of  the  repairs,  might 
be  recovered  by  the  out-gouii?  tenant  in  a  count  upon  a  general  indcOi- 
intxn  assumpsit  for  goods  sold  and  delivered  (b'). 


.>3 


[  446  ] 


CHAPTER  XVI. 


Of  the  Remedies  for  Waste, 


Section  I>    -By  Action  of  Waste  on  the  Statute  of  Glou- 
cester :  and  Trover  for    Waste. 

Section  II.    Action  on  the  Case  in  the  Nature  of  Waste. 

Section  HI.    In  Equity, 

Section  I.     Of  Waste  on  the  Statute  of  Gloucester.. 

REMEDIES  for  waste  lie  at  common  law  by  prohibition  of  waste 
and  action  of  waste  :  in  favour  of  thfe  owner  of  the  inheritance ;  how- 
ever, the  statutes  of  Marlbridge^  52  H.  S.  c.  23.  and  of  Gloucester, 
6  E.  1.  c.  5,  provided  that  the  writ  of  waste  shall  not  only  lie  against 
tenants  by  the  law  of  England  (or  curtesy)  and  those  in  dower,  but 
against  any  farmer  or  other  that  holds  ui  any  manner  for  life  or  years : 
so  that  for  above  five  hundred  years  past  all  tenants  merely  for  life  or 
for  any  less  estate  have  been  punishable  or  liable  to  be  impeached  for 
waste  both  voluntary  and  permissive  ;  unless  their  leases  be  made,  as 
sometimes  they  are,  without  impeachment  of  waste,  absque  impetitione 
vasti  ;  that  is,  with  a  provision  or  protection  that  no  man  impetere  or 
sue  him  for  waste  committed  {a). 

But  tenant  in  tail,  after  possibility  of  issue  extinct,  is  not  impeach- 
able for  waste ;  because  his  estate  was  at  its  creation  an  estate  of  inhe- 
ritance, and  so  not  within  the  statutes.  The  first  incident  to  an  estate 
tail  is,  that  the  tenant  shall  not  be  punishable  for  committing  waste,  by 
felling  timber,  pulling  dov/n  houses,  opening  and  working  mines,  &c. 
But  this  power  must  be  exercised  during  the  life  of  the  tenant  in  tail, 
for  at  the  instant  of  his  death  it  ceases.  If,  therefore,  a  tenant  in  tail 
sell  trees,  growinci;  on  the  land,  the  vendee  must  cut  them  down  during 
the  life  of  the  tenant  in  tail ;  for  otherwise  they  will  descend  to  the 
heir,  as  parcel  of  the  inheritance  (i). 

(a)  2  Bl.  Com.  2J5.  (6)  Cruise's  Dig.  tit  2  C.  1.  s.  33: 


Sect.  I.]      OfJrastcontlifSlahifrofCAomt^it'i.  n7 

The  Court  of  Chaiuery  will  not,  in  any  case  whatever,  rehtrain  the 
tenant  in  tail  from  coniniittini;  waste.  It  is  said  also,  that  if  he  i;rant 
all  his  csfati-,  the  <;rantee  is  dij^punishaljle  for  waste:  so  if  grantee 
grant  it  over,  his  ;;rantee  is  likewise  dispunishahlc.  Neither  does  waste 
lie  for  the  (Ichlor  ai^ainst  tenant  by  statute,  recot;nizinc(',  or  clci;if,  be- 
cause against  them  the  debtor  may  set  olFthe  dan\.ii;es  in  account :  but 
it  soems  reasonable  that  it  should  lie  for  the  reversioner  expectant  on 
the  determination  of  the  debtor's  own  estate,  or  of  thobc  estates  derived 
frum  the  debtor  (<«)• 

By  the  statute  of  Mrtr/ir/Vf^r,  single  damages  only  could  be  recovered, 
except  in  the  case  of  a  guardian  ;  hut  the  statute  of  GLoucistvr  directs 
that  tenant  in  dower,  l)y  the  curtesy,  for  life,  or  years,  shall  lose  and 
forfeit  tiie  place  wjicrein  the  waste  is  conuuitted,  and  also  treble  da- 
iiiat^es  to  lilm  that  hath  the  inheritance.  The  statute  speaks  of  terms 
of  //curs  in  the  plural  numb(r  ;  but  thoui^h  il  be  a  penal  law,  whereby 
treble  damages  and  the  place  wasted  shall  be  recovered,  yet  a  tenant 
for  half  a  year,  being  within  the  same  mischief,  shall  be  within  the 
same  remedy,  though  it  be  out  of  the  letter  of  the  law.  The  expres- 
sion of  the  statute  is,  that  "he  shall  forfeit  the  thing  which  he  hath 
Masted:"  and  it  hath  been  determined  that,  under  these  words,  the 
place  is  also  included. — If  waste  be  done  A/iar/iJn,  or  here  and  there, 
all  over  a  wood,  the  whole  wood  shall  be  recovered ;  or  if  in  scvi  ral 
rooms  of  a  house,  the  whole  house  shall  be  forfeited  ;  because  it  is  im- 
practicable for  the  reversioner  to  enjoy  only  the  identical  places  wasted, 
when  lying  interspersed  with  the  other.  But  if  waste  be  done  only  at 
one  end  of  a  wood  (or  perhaps  in  one  room  of  a  house,  if  that  can  be 
conveniently  separated  from  the  rest),  that  part  only  is  the  locrs  vas- 
tntus,  or  thing  wasted,  and  that  only  shall  be  forfeited  to  the  rever- 
sioner (l)). 

The  redress  under  this  statute  for  tint  injury  of  waste  is  of  two  kinds, 
preventive  and  corrective;  the  former  by  writ  of  fi/rr/)6rj;zc;// ;  the 
latter  l)y  action  of  waste. 

Estrrpcmnit. — Estrrpcmcnt  from  c'xlirparc^  signifies  to  draw  away 
the  heart  of  the  ground,  by  ploughing  and  sowing  it  continually,  without 
jnanuring  or  other  good  husbandry,  whereby  it  is  imjKiired  ;  ami  may 
l)e  also  applied  to  the  cuttinc;  ilown  trees,  or  lojping  them  farther  than 
the  law  allows.  The  word  is  iKcd  for  a  writ,  wldcli  lies  in  two  cases  : 
the  one  by  the  statute  n[  d'loiK  cstrr,  when  a  person  haviui;  an  action  de- 
pending, as  Si  formrdon,  writ  of  right,  <V'r.  sues  to  prohibit  the  tenant 
(torn  making  waste  during  the  suit  ;  the  other  is  for  the  demandant, 
who  is  adjuil^cdto  recovcrseisinof  the  land  in  question  after  judsment 
and  before  execution  ^uid  by  the  writ  oi  habere  feu  ias  possrsaionrfn, 

(a;  CruUc'i  D4  lit  r.C.  I.  j.  a   3  IxiD.  Vn  (i)  Co.  Lit.  54 


448      Of  Waste  on  the  Statute  of  Glouces^ter.  [Chap.   XVI. 

to  prevent  uaste  being  made  before  he  gets  into  possession.  By  an 
equitable  construction  of  the  statute  of  Gloucester,  an(i  in  advancen^.ent 
of  the  remedy,  it  is  now  held  that  a  writ  oi  cstrcpemcnt  to  prevent  waste 
may  be  had  in  eveiy  stage,  as  well  of  such  actions  wherein  damages 
are  recovered,  as  of  those  wherein  only  possession  is  had  of  the  lands; 
for  perhaps  the  tenant  may  not  be  able  to  satisfy  the  demandant  his  lull 
damage.  In  an  action  of  waste  itself,  therefore  (of  which  hereafter), 
to  recover  the  place  wasted  ami  also  damages,  this  writ  will  lie  as  well 
before  as  after  judgment,  for  the  plaintiil'  cannot  recover  damages  for 
more  waste  than  is  contained  in  his  original  complaint :  neither  is  heat 
liberty  to  assign  or  give  in  evidence  any  waste  made  after  suing  out 
the  writ :  it  is  therefore  reasonable  that  he  should  have  this  writ  of 
preventive  justice,  since  he  is  in  his  present  suit  debarred  of  any  fur- 
ther remedy  (rt) 

If  a  writ  of  estrepement  forbidding  waste  be  directed  and  delivered  to 
the  tenant  himseif,  as  it  may  be,  and  he  afterwards  proceeds  to  commit 
waste,  an  action  may  be  carried  on  founded  upon  this  writ,  wherein 
the  only  plea  of  the  tenant  can  be  non  fecit  vastum  contra prohibitionemy 
and  if  upon  verdict  it  be  found  that  he  did,  the  plaintiil  may  recover 
damages  and  costs,  or  the  party  may  proceed  to  punish  the  defendant 
for  the  contempt  (6). 

This  writ  lies  properly  where  the  plaintiff  in  a  real  action  shall  not 
recover  damages  by  his  action,  and  as  it  were  supplies  damages  ;  for 
damages  and  costs  may  be  recovered  for  waste,  after  the  \\  rit  of  estre- 
penie?it  is  brought  (r). 

By  virtue  of  either  of  these  writs,  the  sheriff  may  resist  those  that 
do,  or  offer  to  do  waste  ;  andif  otherwise  he  cannot  prevent  them,  he 
may  lawfully  imprison  the  wasters,  or  make  a  warrant  to  others  to  im- 
prifOn  them  ;  or,  if  necessity  require  it,  he  may  take  iheposse  cornitatus 
to  his  assistance  {d). 

Writ  of  Waste. — The  writ  of  waste  is  also  an  action  partly  founded 
on  the  common  law,  and  partly  upon  the  statute  of  Glmiccster,  and  may 
be  brought  l)y  him  that  hath  the  immediate  estate  of  inheritance,  whe- 
ther it  be  fee-simple  or  fee-tail  ;  provided  the  reversion  continue  with 
him,  in  the  same  state  in  which  it  was  at  the  time  of  the  av  aste  done, 
ami  be  not  granted  over ;  for  though  he  take  the  estate  back  again,  the 
action  is  gone,  because  the  estate  did  not  continue  (<-).  Ihis  is  a  re- 
medy and  yet  a  penal  law,  and  therefore  shall  have  a  favourable  con- 
etruction  (/). 

A  purchaser  (as  contradistinguished  from  one  by  descent)  shall  have 
an  action  of  waste  ( o-). 

(t;  F.  N.  B.  3  Inst  328.    5  Hep.  115.  (6)  Moor,  100.  (e)  Ibid.  2Insf.  328. 

{d}  Ibid.  329.  Cf)  2  Wood's  iDgt.  351.  (/)  z  Mod.  93.  (s)  Ibid- 


Sort.  I.]     Of  Ifuitf  on  (he  Sfalulr  nf  (\]n\uf<^\cv.  \\\} 

So,  a  parsitn,  A*r.  for  it  is  the  dowry  of  tlir  cliiirch. 

But  if  a  lease  he  made  to  y/.  for  hfe,  reinaiiuler  to  /J.  for  life,  remiin. 
tier  to  C.  in  fee,  no  «iction  of  waste  h"es  attains!  the  first  leswc  (Inring 
the  estate  in  the  mesne  remainder,  for  then  his  estate  xvoulil  he  dc- 
Btroyed ;  otherwise  if  Ji.  had  a  mesne  remainder  for  years,  for  that 
would  have  hern  no  ini])cdin)(ii1,  the  recovery  not  destroying  the  ti  rm 
for  years.  But  though  Ji.  cannot  bring  waste,  he  may  have  an  injur.c 
tion  (unless  it  he  iiKJioraliii;^  waste,  as  by  buildini^  houses,  .Vcc.)  :  but 
llic  reversioner  or  remaind<r-nMn  in  fee  nnisl  be  iiiailc  a  pirly,  lor  pos- 
sibly they  may  approve  of  the  waste  {<i). 

U  tjjc  lessee  for  years  commit  waste,  and  his  term  expires,  yet  the 
lessor  shall  have  an  action  of  waste  f(jr  the  treble  damages  {b).  1(  a 
J)ishop  make  a  lease  lor  life  or  yearn,  and  die,  the  lessee,  ti.e  fee  beinj; 
void,  doth  waste,  the  successor  shall  have  no  action  of  wa'^te  (  ).  Te- 
nant in  conmion  need  not  join  in  action  of  waste  (r/).  This  action  is 
also  mdintainal)li'  in  pursuance  of  thestat.  of  IVcstm.  2..  (13  /v.  I.  r.  22.) 
by  one  tenant  in  c(mimonof  the  inheritance  against  another,  who  makes 
uaste  in  estate  holdcn  in  common:  the  equity  of  wliich  statute  extends 
to  joint-tcn;mt:3 ;  })ut  not  to  copartners,  because  they,  by  the  old  law, 
might  make  partition  ;  but  tenants  in  common  and  joint -tf'tianlh'  could 
not,  whereof  the  statute  gave  them  this  remedy,  compelling  the  de- 
fendant cither  to  make  partition  and  take  the  place  wasle<l  to  his  own 
share,  or  give  security  iKit  to  commit  any  farther  waste.  But  thoe  te- 
nants in  common  and  joint-tenants  are  not  liable  to  the  penalties  of  the. 
statute  of  Gloucester,  w  hich  extends  only  to  such  as  have  life  estates  and 
do  waste  to  the  prejudice  of  the  inheritance  (r). 

The  grantee  of  a  revt  rsion  shall  have  waste  :  therefore  if  the  lessee 
of  land  opens  a  coal  mine  and  grants  ail  his  inlerest,  excepting  the 
mine,  \iabte  will  lie  J)y  an  assignee  of  the  reversion  against  the  giantee 
for  coals  afterwards  dug  by  the  grantor  ;  for  the  exception  beiUj^  of  a 
thing  wilh  which  he  had  not  pow<r  to  meddle,  was  void  ( /  ). 

A  proviso  in  a  lease  that  the  Ussor  shall  cut  down  trets,  is  a  cove- 
nant and  not  an  exception:  therefore  the  heir  may  maintain  waste  if 
♦  hey  be  cut  down  (5^).  But  it  a  lease  be  made  excepting  tiic  wood  and 
timber,  an  action  of  waste  Avijl  not  lie  against  the  leasee  for  ctjt'.in'^ 
it  dow  n,  because  not  demisc/d.  If  the  termor  assign  his  term,  except 
the  trees,  and  allerwanis  the  trees  are  cut  down,  waste  will  lie  agftiust 
the  assignee,  for  the  exception  was  void  :  but  if  tenant  for  life  make  u 
lease  for  years,  he  may  except  the  trees,  because  ho  still  remains  tenant 
and  is  chargeable  in  waste  (A). 

Waste  lies  against  an  executor  de  son  tort  of  a  tf  rm  of  years  or  o( 

,-..;  n  AJfxl  M.  (h)  r»  r.  Wfw.  n.  r.  (•)  Co.  LU  fsa  l.d)  5  Mod  M 

<')  :ln!.t.  131.  (/I  To    Ltl.M.ir  n   Tro.  Eli7  V»  iMd.  6.-0 

1^  Bull  X    r  Ml  "  •' 


460       Of  Waste  on  the  Statute  o/ Gloucester.    [Chap.  XVI. 

other  chattels,  by  stat.  30.  C.  2.  c.  7  and  4  &  5  IV.  &,  M,  c.  24. 
£.  12. 

An  occupant  shall  be  punished  for  waste So,  if  the  tenant  for  iife 

or  years,  or  their  assignee  make  a  grant  over,  and  notwithstanding 
take  the  profits,  an  action  of  waste  lies  against  him,  by  him  in  the  re- 
version or  remainder  by  the  statute  {a). 

One  may  have  an  action  of  \\aste  upon  several  leases,  and  upon 
several  grants  of  a  reversion  (&). 

By  the  custom  of  London,  waste  lies  at  common  law,  for  waste  in 
houses  there  ;  and  now  since  the  statute  of  Gloucester,  waste  lies  there 
in  cases  within  the  statute  as  well  as  in  others ;  for  though  the  statute 
gives  an  action  of  waste  in  cases  where  it  would  not  lie  before,  and 
gives  also  treble  damages  et  Locum  vastatum,  yet  it  does  not  take  away 
the  jurisdiction  of  any  Court  that  before  held  plea  of  waste.— So  a 
writ  of  estrepement  lies  in  London  pendente  placito,  or  after  judgment 
and  before  execution,  to  stay  waste  (c). 

No  person  is  entitled  to  an  action  of  waste  against  a  tenant  for  life, 
but  he  who  has  the  immediate  estate  of  inheritance  in  remainder  or  re- 
version, expectant  upon  the  estate  for  life.  If  between  the  estate  of 
the  tenant  for  life  who  commits  waste  and  the  subsequent  estate  of 
inheritance  there  is  interj)osed  an  estate  of  freehold  to  any  ptrson  in 
esse,  then  during  the  continuance  of  such  interposed  estate,  the  action 
of  waste  is  suspended  ;  and  if  the  first  tenant  for  life  dies  during  the 
continuance  of  such  interposed  estate,  the  action  is  gone  for  ever. 
But  though  while  there  is  an  estiite  for  life  interposed  between  the 
estate  of  the  person  committing  waste  and  that  of  the  reversioner  or 
remainder-man  in  fee,  the  remainder-man  cannot  bring  waste ;  yet  if 
the  waste  be  done  by  cutting  down  trees,  Sec.  such  remainder-man  in 
fee  may  seize  them,  and  if  they  are  taken  away  or  made  use  of  before 
he  seizes  them,  he  may  bring  trover:  for  in  the  eye  of  the  law  a  remain- 
der-man for  life  has  not  the  property  of  the  thing  wasted  ;  and  even  a 
tenant  for  life  in  possession  has  not  the  absolute  property  of  it,  but 
merely  a  right  to  the  enjoyment  or  benefit  of  it,  as  long  as  it  is  annexed 
to  the  inheritance,  of  which  it  is  considered  a  part,  and  therefore  it  be- 
longs to  the  owner  of  the  fee  (d). 

The  action  of  waste  is  a  mixed  action:  partly  real,  so  far  as  it  re- 
covers land ;  and  partly  personal,  so  far  as  it  recovers  daraages ;  for  it 
is  brought  for  both  of  those  purposes,  and  if  waste  be  proved,  the 
plaintiiTshall  recover  the  thing  or  place  wasted,  and  also  treble  damages 
by  the  statute  of  Gloucester. 

The  process  in  the  action  of  waste  is,  first  a  writ  of  summons  made 
by  the  cursitor  of  the  county  where  the  land  lies,  and  on  the  return 

Co)  Co.  Lit.  61.  (6)  Cro.  Jac.  330.  Poph  D5.  («)  Com.  Dig.  Waste.  [B.  1.) 

^rf)  Co.  Lit.  218.  b.  n  2, 


Sect.  TI.]     Of  IVastc  on  the  Statute  of  (ilouccster.  451 

of  this  writ  the  dt  rciKlant  may  essoin  and  the  plaintill  adjourii,  \.r.. 
Then  wpniw  is  made  out  liy  the  llla/.cr  of  tlie  county,  on  the  return  of 
which  a  distringas  issues  for  the  defendant  to  apix^ar,  and  upon  his  ap- 
pearing the  phiintilf  declares,  and  the  defi  ndant  pleails,  N;c. 

The  «rit  of  wastxi  calls  tipon  the  tenant  to  appear  and  shew  cause 
why  lie  hath  C'>nui!itted  waste  and  fle«triiction  in  the  place  named  to 
the  ilisinhcrison  of  the  plainliif.  If  the  defendant  makes  default  and 
does  not  appear  at  the  day  assiu:ncd  him,  then  the  sherilT  is  to  take 
with  him  a  jury  of  twelve  men  ami  cjo  in  person  to  the  place  allcdtjcd 
to  be  wasted,  and  there  enquire  of  tl»c  waste  done  and  the  (taniages, 
aiid  make  a  return  or  report  of  the  same  to  the  Court,  upon  which 
report  the  imli:;mcnt  is  founded  (n). — But  if  the  defendant  apjvars  to 
tjie  writ  and  afterwards  sullers  jiidjjment  to  go  against  him  l)y  default, 
or  upon  a  nil  'died  (when  he  makes  no  answer  or  puts  in  no  plea  irt 
defence),  tliis  amounts  to  a  confession  of  the  waste,  since  having  once 
appeared,  he  cannot  pretend  ignorance  of  the  charge.  The  sherilF, 
therefore,  shall  not  go  to  the  place  to  enquire  of  the  fact,  but  shall 
only  (as  in  default  in  other  actions)  make  enquiry  of  the  quantum  of 
damages  {b). 

In  waste  the  plaintift'must  shew  how  he  is  entitled  to  the  inheritance; 
Uicrefore,  if  he  counts  upon  a  lease  by  himself,  he  must  shew  his  seisin 
in  fee,  and  demise  to  the  defendant  (r). 

In  every  case  the  plaintitV  in  this  action  must  shew  his  title.  Thus, 
if  he  claim  by  fine,  he  must  plead  the  fine  and  the  uses  of  it ;  if  by 
common  recovery,  he  must  shew  the  recovery  and  uses :  so,  if  by 
grant  of  the  reversion,  he  must  shew  how  he  clainrs  by  assignment ; 
and  if  the  hiis!)and  and  w  ife  in  rigid  of  the  wife  sue,  tliey  must  alledge 
the  reversion  in  both  :  so,  if  the  plaintifTs  sue  as  parceners  or  joint-ten- 
ants, tlie  declaration  should  shew  that  they  are  so  (r/). 

If,  however,  the  pUiiiitii]"  conclude  ad  t.v/i(rrrdit(itioncin,  it  supplies 
tjie  omission  of  the  estate  of  which  he  was  seised,  after  verdict  :  so  if 
he  shews  the  special  matter  it  is  sufficient,  though  he  does  not  name 
himself  assignee  :  so,  if  llie  writ  is  general,  cujus  luircs  the  plaintiff  is, 
tJiongh  he  has  a  special  inheritance  n). 

If  the  piaintiif  has  the  reversion,  he  sliall  say  that  the  defendant 
holds  of  him  :  l)ut  it  is  otherwise,  if  wa«te  be  brought  by  him  in  rc- 
mainchr  ;  or  by  the  lord  who  has  by  escheat,  for  there  is  no  tenure  of 
him  (/). 

The  plaintiff  must  always  charcre  the  defetidant  in  tire  trnef,  or  in  the 
trnuit ;  for  there  is  no  other  f<nm  :  and  u)iist  charge  him  as  as.signec, 
exeaitor,  Stc.  So,  lie  must  charge  him  by  virtue  of  the  lease  by  which 
he  is  possessed  :  a?,  if  llie  defendant  be  in  by  devise,  he  must  charge 

(a^Poph.  24-  {b)  Cro.  Kliz  l»   230  (c)  Com  Di{.  Ut.  "  r»e*drr."  [X  0.  i  ] 

:J)  Hid.  (e)  ll)id.  '/;lt>..!. 


452         Of  JVasteonlhe  Statute  of  Gloucester.  [Chap.  XVI, 

him  as  tenant  c.v  legationc  If  defendant  claims  by  a  remainder  for  life 
or  for  years,  which  is  now  in  possession,  he  may  be  charged  upon  a  de- 
mise to  him  ;  but  if  he  be  in  hy  the  statute  of  Uses,  it  is  sutlicient  to 
charge  him  generally,  without  saying  on  whose  demise  («). 

The  declaration  must  assign  the  waste  conformably  to  the  writ :  for 
if  the  writ  is  for  waste  in  land,  and  it  is  assigned  in  cutting  wood,  it 
is  bad  [b). 

If  waste  be  assigned  in  land,  it  must  say  in  what  parish  it  lies  (c). 

It  is  sulhfeient  to  assign  waste  directly,  without  shewing  the  particu- 
lar manner  in  which  it  was  committed  ;  as,  if  it  is  in  germins,  it  is 
sufficient  to  say,  that  he  destroyed  the  germins  generally,  without  say- 
ing that  he  suliered  the  hedges  of  the  wood  to  be  neglected,  whereby 
cattle  f  ntered  and  ate  the  germins ;  and  if  a  stranger  commit  the  waste, 
that  fact  need  not  be  mentioned. 

But  the  declaration  nmst  particularize  the  quality  or  quantity  of  the 
waste  ;  as  if  it  is  in  cutting  trees,  the  plaintiJi  must  shew  the  numljer 
of  the  trees. — If  the  demise  is  of  a  moiety  of  a  manor,  and  other  lands, 
and  the  waste  assigned  in  wood,  parcel  of  the  premises,  it  is  bad  ;  for 
it  cannot  be  parcel  of  the  manor,  and  also  of  the  other  lands. 

If  tiees  be  excepted  out  of  a  demise,  waste  cannot  be  committed 
by  cutting  them  down  ;  and  therefore  ejectment  cannot  be  brought  as 
for  waste  committed  in  or  upon  the  demised  premises  (d). 

A  declaration  in  waste  that  the  defendant  ploughed  up  the  land, 
which  was  pasture,  et  sic  vastum  fecit,  was  held  l)ad  for  uncertainty  ; 
even  after  verdit  [e). — After  verdict,  nothing  is  to  be  presumed  but 
what  is  either  expressly  stated  in  the  declaration,  or  necessarily  implied 
from  those  facts  which  are  stated  (/ )  :  for  a  verdict  will  cure  ambigu- 
ity only,  but  will  not  aid  where  the  gist  of  the  action  is  omitted  to  be 
laid  in  the  declaration  (§•). 

The  declaration  must  be  ad  exMreditationem  of  the  plaintiff;  if  he 
be  seised  in  right  of  his  wife,  it  shall  be  ad  exhaereditationem  of  the  wife. 
So,  if  there  are  several  plaintiffs,  there  may  be  summons  and  sever- 
ance ;  for  it  is  a  real  action,  and  ad  exhcereditationem  (K). 

The  general  issue  to  an  action  of  waste,  is  "  no  waste  done  ;"  but 
this  admits  nothing,  but  puts  the  whole  declaration  in  issue  ;  and  may 
be  pleaded  in  all  cases  where  there  is  no  waste,  as  if  destruction 
happens  by  tempest,  See.  If  therefore  the  defendant  plead  nvl  waste 
fait,  and  issue  is  taken  thereupon,  the  plaintiff  must  prove  his  title  as 
laid  in  the  declaration  :  he  must  likewise  prove  the  kind  of  waste  laid 
in  the  declaration  ;  and  therefore  if  he  alledge  waste  in  cutting  trees, 
and  the  jury  find  that  he  stubbed  them  and  did  not  cut  them,  it  is 

{a)  Com.  Dig.  tit.  "  Pleader"  [3.  0.  3.]  (6)  Ibid.  [3.  0.4.]  (c)  Ibid.  [3.O.  5] 

(d)  8  Kast,  IJO.  (e;  2  3how.  H.  C.  (f)  1  T.  R.  145.  (ff)  Cowp.  828.  Doug.  63' 

.'*)  Ibid.  [3.  CO.] 


Sect.  I.]      Of  f taste  on  the  Statute  of  G]cniccsier.  .\r)3 

\  iriince  (rt).—DefctKl'mt  may  also,  under  the  i;;eneral  is'Juo  give  in 
cvidriicp  any  tJiirii  wln'cli  proves  that  it  is  no  waste  ;  as  that  it  was  hy 
Irinpn^ts,  Ay.  as  before  observed  ;  l)iit  not  that  it  was  lor  repairs,  or 
that  the  plainli.r  gave  him  leave  to  cut,  or  that  he  had  repaired  before 
thft  action  brouij;ht.  Neither  will  it  beany  defi-ncc  thata  stranu;erdi<l 
it,  fir  if  the  plaintilf  should  not  have  his  action  of  waste,  he  would 
be  wit  limit  remedy  ;  and  the  defendant  may  briiij;  trespass  a:,Minht  the 
straoj^er,  and  recover  liis  flimaLijep.  iiut  it  would  be  a  good  pita  to 
f>ay  tliat  the  piaintiif  himself  did  it  (.'>). 

If  several  wastes  are  assigned,  and  the  defendant  is  not  guilty  of 
p  irt  of  any,  he  may  plead  "  no  \vast<'  done"  to  altogether,  and  need 
not  say  to  every  part  severally  "  no  waste"  (r). 

If  the  tenant  repairs  before  action  brought,  it  is  said,  lie  in  revei- 
sion  cannot  have  an  action  of  waste  ;  but  the  tennnt  cannot,  in  sueli 
case,  plead  tiiat  he  did  no  waste,  but  must  plead  the  special  mailer; 
((I)   for 

"  Xo  waste  done"  is  no  pica  where  the  defendant  has  matter  of  justi- 
fication, or  excuse.  Therefore,  if  there  be  a  lease  to  //.  for  two  years, 
and  afterw ards  a  lease  to  D.  for  ten  years,  in  w aste  against  IL  for  waste 
during  the  two  years,  he  cannot  plead  "  no  waste  done"  (r). 

The  (.lefendant  may  plead  in  juslilication  that  he  took  for  rcpnirs;  as 
for  rei)air  of  the  fences  and  other  necessary  uses:  or,  that  he  pulled 
down  to  rebuild  and  repair  the  liouse,  fences,  A'r.  Therefore  tenant 
for  liie  may  justify  cutting  down  timber  uj)on  the  ground  letten,  and 
repairin;^  the  house  therewith,  though  he  is  not  compellable  to  repair  it 
if  it  were  ruinous  w  hen  the  lease  was  made  (  f). — Mut  it  is  not  sullicient 
to  say,  that  he  took  for  repairs,  if  he  does  not  add  tliat  he  used  or  keeps 
for  repairs ,  for  it  is  waste  for  a  lessee  to  cut  down  timber-trees  for  the 
purjjoses  of  repairs  when  there  is  no  occasion,  for  where  it  otherwise, 
every  farmer  might  cut  dow  n  ail  the  trees  grow  ing  upon  the  land  under 
pretence  that  he  keeps  them  to  employ  about  reparations  whenever 
Kuch  sliall  become  necessary  (/^). 

So  he  may  plead  that  he  took  them  for  other  necessary  botes ;  as  for 
Avain-bote,  cart-bote,  plough-bote,  or  ludge-bol'.%  or  for  gates,  or  stiles  ; 
or  for  nmking  uten.-ils  in  husbandry;  or  for  fuel.  So,  lie  nuy  pleail 
that  they  were  dead  wood,  bearing  neither  fruit  nor  foliage  (/j). 

So,  he  may  plead  that  the  lease  was  without  impeachment  of  waste; 
or,  that  the  pi  lintiu's  ancestor  made  a  bargiin  and  sale  of  t.e  trees  to 
him  :  or,  that  the  lessor  covenanted  that  the  lessee  migut  cut  down 


MBuIl.  X.  p.  159.  (6)  IbiU   120.  ('c>  Com  Dig.  tit,  "  ri««.W"' f  \  O.  7  J 

f'l,  1  In  t.l'  :■    Cra  Jic.  658.  {e}Com.  Dig.  utantr.  i/)  Co,  I.u.  >i.  U. 

•  n»W«  (3.  O    lli-Cift.  EUr.  6J2.  (\)  OpID.  Dlr  vl  m!*.  [3   0.  U  J 


4M        Of  Waste  on  the  Stafide  0/ Gloucester.    [Chap.  XVI. 

trees. But  it  is  no  bar,  that  the  lessor  covenanted  to  repair,  and  that 

he  did  it  for  him  («). 

He  may  also  plead,  that  he  has  rebuilt  and  since  kept  in  repair  ;  for 
he  may  plead  in  excuse,  that  he  repaired  before  action  brought,  for  the 
jury  must  view  the  place  wasted  :  but  "  repaired  pending  the  suit"  is 
no  plea.  So  he  may  plead  that  it  was  so  ruinous  at  the  cooimencenient 
of  his  lease,  that  he  could  not  repair  (/>). 

So,  he  may  plead  a  release  from  the  plaintiff  or  one  of  the  plaintiffs, 
in  bar:  for  if  waste  be  by  two  plaintiffs  in  the  tenuity  a  release  by  one 
is  a  bar  to  both  :  but  were  waste  is  in  the  teyict,  a  release  by  one  plain- 
tiff' bars  himself  only  (r). 

So,  to  waste  in  the  tenuit,  he  may  plead  accord  with  satisfaction  (d). 

So,  the  defendant  may  plead  in  abatement  to  the  plaintiff's  title,  or 
that  the  plaintiff'  has  nothing  in  reversion;  but  he  ought  to  she\T 
how  the  reversion  is  devested,  for  "  nothing  in  reversion,"  generally, 
■will  be  bad  ;  except  where  v,  aste  is  brought  by  a  grantee  of  the  rever- 
sion (e). 

So,  if  the  plaintiff's  title  fails  pendente  lite,  the  defendant  may  plead 
it  after  the  last  continuance. 

So,  he  may  plead  a  mesne  remainder-man  still  alive. 

So,  the  defendant  may  plead  no  demise  made  to  him  :  or,  no  demise 
as  to  part:  or,  that  wood  was  excepted  by  the  demise. — So,  that  he 
has  nothing  by  the  assignment  of  B.  or  that  after  the  demise,  the  de- 
fendant assigned,  before  which  assignment  no  waste  was  done  (  /). 

To  the  plea  of  assignment  before  waste  done,  the  plaintiff"  may  re- 
ply, that  the  assignment  was  by  fraud,  and  he  afterwards  took  the  pro- 
fits :  and  if  the  defendant  rejoins,  he  must  traverse  the  pernancy  of  the 
profits,  not  the  fraud  (§•). 

In  waste,  if  issue  is  joined,  six  jurors  at  the  least  ought  to  have  a 
vicM'  of  the  place  wasted,  otherwise  the  trial  shall  be  staid  :  if  therefore 
■waste  be  assigned  in  several  places,  the  jury  may  find  *'  no  waste  done'' 
in  a  place  of  which  they  had  no  view,  and  they  ought,  it  seems,  to 
have  a  view  (as  the  vejiirc facias  difectsthem  to  have),  though  the  issue 
be  upon  a  collateral  point,  and  the  waste  be  confessed.  Whether  the 
^venire  facias  be  returned  or  not,  the  Court  may  examine  as  to  the  fact 
of  the  jury  having  viewed  or  not ;  for  the  return  does  not  conclude  the 
parties  :  but  it  is  not  necessary,  that  the  officer  return  upon  the  distrin- 
gas jiiratorum,  that  the  jury  have  viewed  ;  or  that  he  w  as  present  at 
the  view  (A). 

If  however  the  waste  be  assigned  in  a  wood  sparsim,  it  is  sufficient  if 

(a)  Cora.  Dig.  ut  ante  [3.  O.  4.]  (h)  Ibid.  [3.  0.  15.]  (c)  Ibid.  [3.  O.  8.  16.] 

('0  Ibid.  (e)   Hid.  [3.0.  10.]  (/)  Ibid.  [3.  0.  19.J  lbid.[3.  0.  18.] 

'.S)  Ibid.  (h)  Coni;Dis.  tit.  "  Pleader."  [3.  O.  21.] 


Sect.  I.]      Of  Waste  on  Ihc  Statute  f^/"  Glouccsl«r.  455 

the  jury  view  tlic  wood,  though  tlicy  do  not  enter  into  it.     So,  if  it  l)c 
in  scveiiii  rooms  of  a  house. 

Of  tli<  Jttdu;mint. — Touching  the  judqmenl  in  ^\a^:l(',  if  tlicre  l)C 
jiidE^nuiil  lor  want,  of  an  appearance  upon  the  distriiig.is  by  the  stat. 
W.  2.  r.  14.  the  gheriit  taking  twelve,  &c.  shall  go  to  the  place  wa'^ted 
and  take  iiu^iiisition  of  tlic  ilunm-c,  ancl  upon  llie  return  thcTcof,  there 
sha.l  'tc  d;una;^e. 

When  the  waste  and  damaj^cs  are  ascertained,  either  by  confession, 
verdict,  or  i?iquiry  of  tiic  shcriif,  jud-^Micnt  is  given  in  pursuance  of 
the  statute  of  Ulouicsfcr,  c.  o,  that  the  plaintill"  shall  recover  the  place 
^vasted  ;  for  which  iic  has  ininiedialcly  a  writ  of  seibin,  provided  the 
particular  estate  lie  still  subsisting  ;  (for  if  it  be  exj)ired  there  can  i)e  no 
fonVitiu'e  of  the  land  ;)  and  also,  that  tlic  plaintiiT shall  recover  trelile 
the  damages  assfFscd  by  the  jury ;  which  he  must  obtain  in  the  yanie. 
manner  as  all  other  damages  in  actions  personal  or  mixed  arc  obtain- 
ed,  \  hcther  the  particular  estate  be  expired,  or  Ijc  still  in  being  {c). 

In  an  action  of  waste  upon  this  statute  a-ainst  the  tenant  for  years, 
for  convertiug  tiuee  closes  of  meadow  into  ganlen  grountl,  if  the  jury 
give  only  one  farthing  damages  for  each  close  :  the  Court  (who  have 
a  kind  of  discretionary  power  therein)  will  give  the  defendant  leave 
to  enter  up  judgment  for  himself  (,'>). 

By  Stat.  8  A'-  U  //'•  3.  c.  11.  5.  3.  a  plaintifT  shall  have  costs  in  all  ac- 
tions of  waste,  where  the  damages  found  do  not  exceed,  twenty  nobles  ; 
which  he  could  not  at  couunon  law. 

i'roverfor  Waste. -^WaLsic  is  a  tort,  and  the  remedy  lies  at  law. 
Therefore  where  limber  is  cut  clown,  trover  may  be  brou^lit  tu  recovii 
the  value. — lu  an  action  of  waste,  the  place  wasted  is  recovered;  in 
action  of  trover,  dajnages  (r). 

Trover  may  be  brought  against  the  executor  of  the  person  who  con- 
verts the  timber  to  his  own  use  (i7). 

But  though  trover  will  lie  at  law,  it  may  be  very  necessary  for  tlie 
party  who  ha.  the  inheritance  to  brin^  his  bill  in  ec^uity,  bee  uise  it 
may  be  iQipo3sii>le  to  discover  the  value  of  the  timber,  it  being  in  pos- 
session of  and  cut  down  by  the  tenant  (r). 

Yet  whether  a  bill  for  an  account  may  be  brouj;ht  by  the  lord  of  a 
manor,  or  a  lessor,  against  a  tenant  for  timber  fclied,  seens  to  be 
douinful  (/). 

{a)  3  111  Com.  KJ.  (h)  2  Uos  fc  PuL  8C.  (c)  3  Atk.  2fi3.  75*. 

(d)  Ibid  6  J7.  <t)  2  P.  Wm.  .il.  C/)  I  V.  W  ms.  40S.  all.  3  AU.    ''.J-  lic«. 


[  456  ] 

Section  II.      Of  the  Aclion  vpon  the  Case  in  the   Nature 

of  Waste, 

Since  the  statute  of  Gloucester^  which  gives  no  more  costs  than  da- 
mages, it  is  usual  to  bring;  trespass  or  case  in  the  nature  of  waste  in- 
stead of  the  action  of  waste. 

An  action  on  the  case  does  not  lie  for  permissive  waste  (r/). 

Either  an  action  on  the  case  or  trespass  will  lie,  at  the  plaintiff's 
election,  against  his  tenant  for  despoiling  the  premises :  and  case  is 
the  better  action  to  recover  as  much  as  he  may  be  damnified,  because 
he  is  subject  to  an  action  of  waste  {b). 

One  tenant  in  common  cannot  maintain  an  action  on  the  case  in  the 
nature  of  waste  against  another  tenant  in  common  (in  possession  of  the 
\vhole,  having  a  demise  of  the  raoiety  from  the  first)  for  cutting  down 
trees  of  proper  age  and  growth  for  being  cut ;  for  it  is  no  hurt  to  the 
inheritance.  If  however  the  trees  were  not  fit  to  be  cut,  he  might 
maintain  such  action  (r). 

Tenant  at  will  has  no  power  to  commit  any  kind  of  voluntary  waste  : 
Lilt  he  is  not  within  the  statute  of  Gloucester  :  and  therefore  an  action 
of  waste  lies  against  him  (d).  If,  however,  a  tenant  at  will  cut  down 
timber-trees,  or  pull  down  houses,  the  lessor  shall  have  an  action  of 
trespass  against  him  (e). 

So,  with  respect  to  permissive  Avaste  ;  no  remedy  whatever  lies 
against  tenant  at  will ;  for  he  is  not  bound  to  repair  or  sustain  houses 
like  tenant  for  years  (/). 

It  is  so  notoriously  the  duty  of  the  actual  occupier  to  repair  the 
fences,  and  so  little  the  duty  of  the  landlord,  that  without  any  agree- 
ment to  that  effect,  the  landlord  may  maintain  an  action  against  his 
tenant  for  not  so  doing,  upon  the  ground  of  tlie  injury  done  to  the  in- 
heritance \^'^). 

A  tenant  from  year  to  year  is  only  bound  to  fair  and  tenantable  re- 
pairs, so  as  to  prevent  waste  or  decay  of  the  premises,  not  to  substan- 
tial ones  (A). 


Section  III.      Of  the  Remedies  in  Equity,  in  the  Case  of 

Waste. 

On  the  subject  of  \^  aste,  the  Court  of  Chancery  has,  it  should  seem, 
a  concurrent  jurisdiction  with  the  Courts  of  common  law. 

(a)  1  Bos.  &.  Pul  N.  R.  OOO.  (6)  Cro.  Car.  187.  {c)  2  T.  K.  US. 

id)  I  CruiBe'sDij.  tit.  9.  s.  13.  fe)   I  Insf.  57.  a. 

'(/)  Ibid.  s.  14,  \b.  3Uep.  13.  b.  1  Show.  238.  {j;)  i  T.  R.  313. 


Sect.  III.]         Of  the  JiimeiVus  in  Equiti/,  Ss'c.  4.'>7 

The  riTit'f  an'onlcl  l)y  that  (.'our(,  is  in  many  cases  Ihc  most  cligi'>lc, 
and  in  sonic,  al)sohitely  necessary  to  bcsonglit,  in  order  to  prevent  the 
commission  o(  threatened  or  impendini,'  waste:  for  the  Court  will  stay 
uastc  upon  application  l)y  Nill  brouglit  for  that  piirpos';  prayini^an 
injunction. 

At  the  common  law,  a  prohihition  uent  out  of  Chancery,  aj^ainst 
the  tenant  by  the  cnrtesy,  in  dower,  or  as  guardian,  at  the  prayer  of 
him  who  had  the  inheritance,  to  inhif)it  waste,  and  tJiat  before  whsIq 
cunnniltcd  (^0. 

Kcspccting  the  remedy  of  the  remainder-man  or  reversioner  (or  in 
the  case  of  eopyliolds,  of  tlie  ior<l)  ai;alnst  the  tenant  a!)Out  to  connuit, 
or  committing  waste,  althoiit^h  a  Court  of  Equity  will  not  assist  a  lor- 
feitiire, yet  the  tenant  in  possession  shall  be  restrained  hi  equity  from 
waste  in  all  cases  in  which  waste  is  punishable  by  laiv ;  and  for  this 
piir])ose,  an  iiijimction  \\  ill  be  granted  before  the  l)ill  is  filed.  Also 
an  injunction  will  be  granted  to  stay  waste  in  behalf  of  an  infant  in 
ventre  sa  mere.  Equity  will  likewise,  in  some  particular  cases,  restrain 
tlie  tenant  from  committing  waste,  where  he  is  dispunishable  by  law, 
cither  l>y  the  nature  of  the  estate,  or  by  express  grant  ''  without  im- 
peachment of  waste:"  but  where,  by  agreement  of  the  parties,  the 
lease  is  made  without  impeachment  of  waste,  equity  will  not  restrain 
the  lessee  from  cutting  timber,  ploughing,  opening  nn'nes,  <<Jv.  though 
such  lessee  shall  be  reslraitied  from  pulling  down  houses,  defacing 
seats,  A'r.  (A). 

AV'ith  respect  to  threatened  or  impending  waste;  the  act  of  send- 
ing a  surveyor  to  mark  out  trees,  is  a  sulilcient  L^nuiml  f<»r  an  injiuic- 
lion  {(■). 

So,  a  threat  to  open  mines,  entitles  a  party  to  come  into  tliis  C^nirt 
to  restrain  him  (W).  Even  if  a  tenant  for  life  insists  on  a  right  to  do 
■waste,  and  has  none,  the  reversioner  may  liavc  an  injunction,  though  no 
proof  of  waste  appear  {r). 

"When  a  bill  is  filed  to  restrain  waste  or  any  other  injury  very  detri- 
mental, so  that  it  is  necessary  to  lose  no  time,  an  injunction  n:ay  be  ap- 
plied for  immediately  after  the  bill  is  filed,  by  special  motion  support- 
ed by  afhilavit  of  the  grievance  (/"). 

So  now  an  injunction  shall  be  granted  upon  aflidavit  of  waste  com- 
mitted, to  inhibit  any  waste  to  be  committed  by  tenant  for  life  or  years; 
as  to  inhibit  meadow,  or  other  pasture,  not  plout;hid  within  twenty 
years,  being-  ploughed  ;  but  not  against  a  lessee,  who  had  a-rreed  to  pay 
2O5.  per  acre  ;jcr  «/j7j.  increase  of  rent,  if  he  ploughed  a  niiadow,  ,S'(-. 

('«)Com  Di?.  lit   "CSuaccrj."  [D.  II.J  ,         .'V  -  Fq  Ca  Air.  3W.  inn. 

(O  5  Ves.  jun.  683.  j(J)  3  Atk.  Hi2.  '    BjrairJ,  i>!. 

(/)  Pirk  An  47. 


458  Of  the  Remedies  in  Equity ,  [Chap.  XVI. 

So  it  Will  be  granted  to  inhibit  ancient  inclosures  being  thrown  down  ; 

or  houses  being- pulled  down  («)• 

So,  against  tenant  after  possibility,  8rc.  or  him  who  in  respect  of  a 
trust,  Sec.  is  not  liable  to  an  action  of  waste  (6). 

So,  against  tenant  for  life,  at  the  suit  of  tJie  remainder-man  in  fee, 
though  there  is  an  intermediate  remainder ;  and  if  tenant  for  life,  with- 
out impeachment  of  waste,  or  any  other  lessee,  has  cut  timber,  so  as 
not  to  leave  sufficient  for  repairs,  the  Court  will  restrain  him  from  cut- 
ting any  more  without  leave  of  the  Court  (c).  Tenant  for  life,  with- 
out impeachment  of  waste,  wiJl  be  restrained  also  from  cutting  down 
trees  in  lines  or  avenues,  or  ridings  in  a  park,  whether  planted  or  grow'- 
ing  naturallyj  or  trees  not  of  a  proper  growth  to  be  cut  {d)  ;  and  though 
he  be  tenant  for  life,  with  liberty  to  cut  timber  "  at  seasonable  times," 
he  is  not  to  cut  trees  planted  for  ornament  or  shelter  to  the  mansion- 
house,  or  sapiing  trees  not  fit  to  be  cut  or  felled  for  timber  {e). 

So,  he  will  be  restrained  from  pulling  down  the  ancient  and  capital 
house,  and  not  only  so,  but  the  Court  w  ill  compel  him  to  put  it  in  the 
same  plight  in  which  he  found  it  (/). 

But  the  Court  of  Chancery,  it  is  said,  will  not  decree  a  tenant  for 
life  to  repair,  or  appoint  a  receiver  with  directions  to  repair  (^). 

However,  where  a  jointress  gave  leave  to  the  next  in  remainder  for 
life  without  impeachment  of  waste,  to  cut  timber  on  the  jointure  es- 
tate, and  he  dying  without  issue,  tlie  remainder-man  over  in  tail  having 
acquiesced  in  and  encouraged  the  so  doing,  he  was  restrained  from  an 
action  of  waste  against  the  jointress  (Ji). 

Where  the  plaintiif  and  defendant  in  possession  were  tenants  in  com- 
mon, an  injunction  to  stay  waste  was  refused:  .but  on  affidavit  of  tlie 
defendant's  insolvency  it  was  granted  (/). 

The  Court  will  grant  an  injunction  at  the  suit  of  a  ground  landlord 
to  stay  waste  in  an  under  lessee,  who  holds  by  lease  from  the  original 
landlord  ;  upon  a  certificate  being  produced  of  the  waste  (/r). 

So,  the  mortgagor  may  have  an  injunction  to  stay  waste  against  the 
mortgagee,  if  he  cut  down  timber,  and  do  not  apply  the  money  arising 
from  the  sale  in  sinking  the  interest  and  principal  (/).  So,  m  here  the 
mortgagor  commits  Avaste,  the  Court  will  graiit  the  mortgagee  an  in- 
junction; for  they  will  not  suffer  the  mortgagor  to  prejudice  the  in- 
cumf)rance  {m). 

So,  though  a  rector  may  cut  down  timber  for  the  repairs  of  the  par- 
sonage house  or  chancel  (but  not  for  any  common  purpose),  and  is  en- 
titled to  botes  for  repairing  barns  and  out-houses  belonging  to  the  par* 

(a)  Com.  Di;.  tit.  "  Chancery."  (D.  11.)  (6;  Ibid.  (c)  Ibid. 

<d)  3  Alk.  215.  755.  («;  3  Br.  R.  549.  (/)  Com.  Dig-  ««  nnte.  Prac.  Ch.  451. 

(S)  Ambl.  335.  {h)  I  Ves.  336.  (0  3  Br.  R.  f,21. 

I*)  3  Atk.  723.  Ambl.  105.  (i)  Ibid.  ('"')  Ibid.  &  210. 


Sect.  III.]  in  the  Cast  of  Waste.  459 

Eonaqe,  an  injunction  to  stay  waste  iu  cuttini;  down  timber  in  the 
churchyard,  will  l)e  granted  fill  the  cause  l)e  lie.ird  (^a) ;  and  an  injunc- 
tion was  granted  to  stay  waste  against  the  widow  of  a  rector,  at  tlie 
suit  of  the  [)atroness,  during  a  vacancy  (/>). 

An  injunction  to  stay  ^^astc  may  be  granted  in  favour  of  a  child 
in  ventre  sa  mere  (r). 

Hilt  where  a  clause  '*  without  impfacluiient  of  waste,"  is  inserted  in 
a  lease  or  demise  for  years,  it  will  have  the  same  ellcc  as  uhen  it  is  in- 
serted in  a  conveyance  of  an  estate  for  life ;  and  the  Court  of  Ciiancery 
Avill  rei(f  rain  the  import  of  it,  in  the  same  manner  as  in  the  case  of  an 
estate  for  life  (J). 

The  Court  will  not  grant  an  injunction  to  stay  waste  in  digging  mines 
where  the  delendant  sets  up  a  right  to  the  inheritance  of  the  estate,  till 
the  answer  is  come  in  or  the  defendant  has  made  default  in  not  putting 
in  his  answer,  for  such  injunctions  vire  never  ;i;ranted  before  the  hearing, 
unless  the  defendant  had  only  a  term  in  the  estate,  for  years,  or  for  life, 
anil  the  reversion  was  in  the  plaintiff  {^r). 

The  lord  of  a  manor  may  bring  a  bill  for  an  account  of  ore  dug,  or 
timber  cut,  Ijy  the  defendant's  testator.  Indeed,  as  to  ihe  projierf  y  of 
the  ore  or  timber,  it  would  be  clear  even  at  law  that  if  it  came  to  the 
executor's  hands,  trover  would  lie  for  it  ;  and  if  it  had  been  ilisposed  of 
in  the  testator's  iife-time,  the  exocutor  if  assets  are  left,  ought  to  an- 
swer for  it :  but  it  is  stronger  here,  by  reason  that  the  tenant  is  a  s.)rt  of 
fiduciary  to  the  lord,  and  it  is  a  breacli  of  trust,  which  the  law  reposes 
in  the  tenant,  for  him  to  take  away  the  property  of  the  lord  (/). 

A  bill,  however,  for  a  mere  acc()unt  of  timl)er  cut  down,  was  dis- 
missed by  Lord  flurdwicke,  as  being  the  proper  su!>ject  of  in  action  at 
law;  b.it  iiis  Lordship  add'-d.  t'at  there  w^re  many  instances  where 
the  Court  had  decreed  an  account  in  the  case  of  mines,  which  they 
would  not  have  done  in  that  of  timber  ;  because  the  digging  of  mines 
is  a  sort  of  trade  (rf). 

But  as  to  the  trespass  of  breaking  up  meadow,  or  ancient  pisture 
ground,  it  dies  witii  the  person  ;  wherefore  no  bill  will  be  entertained 
for  an  account  thereof  (/'). 

Xeilher  is  every  connuon  trespass  a  foundation  for  an  injunction, 
"uhere  it  is  only  contint^i;nt  and  trmp'»rary  :  but  i(it  continue  so  long  as 
to  become  a  nuisance,  in  such  case  the  Court  will  interfere  and  grunt  an 
injunction  to  restrain  the  pTson  from  fcomniitting  it  (/). 

B.it  th'»  Court  will  award  a  perpetual  injunction  to  rcftrain  waste  by 
ploughing,  burning,  breaking,  or  sowing  down  lands  (A).- 

(0)2  Atk  :i:.  (6;aBr.n.  552.  (cs  \tk.cn. 

{d;  1  Crui>«N  Di;  tit.  8  6.  12.  .  (t)  3  AU.  49fi.  Q'J  I  J'.  Wiu^  406. 

(S)  3  Atk  262.  Arab,  ii  1.  2.  <A)  I  V.  Vint.  407.  '..;  3  Atk.  £1. 

ri;4Br.  C»  infarlOTI. 


460  Of  the  Bemcdies  in  Equity^  SCc.     [Chap.  XVI. 

So,  an  injunction  shall  go  to  restrain  the  defendant  from  injuring 
fish  ponds  (rt). 

AVhere  a  bishop  was  directed  by  tlie  Court  of  Chancery,  to  })ring 
(rover  in  order  to  try  the  rigiit  as  to  certain  ore  dug  and  disposed  of  by 
a  tenant  of  a  manor  of  which  the  bishop  was  lord  ;  upon  trial  thereof 
it  appeared  that  there  never  had  been  any  mine  of  copper  before  disco- 
vered in  the  manor,  wherefore  the  jury  could  not  find  that  the  customa- 
ry tenant  might  by  custom  dig  and  open  new  copper  mines;  so  that 
upon  the  production  of  i\iQ postca^  the  Court  held  that  neither  the  te- 
nant without  the  licence  of  the  lord,  nor  the  lord  without  consent  of 
the  tenant,  could  dig  in  those  copper  mines,  being  new  mines  {b). 

On  motion  to  stay  waste,  a  particular  title  must  be  shewn  ;  and  the 
motion  sliould  be  made  upon  affidavit  of  the  title,  waste  committed, 
and  a  certificate  of  the  bill  hied  (c ), 

(a)  2  Br.  H.  61.  (6)  1  P.  Wms.  40?,  {c)  3  Atk.  496,  Com.  Dig.  ■at  nn'.z. 


L   4G1   ] 


CHAPTER  XVII. 


Of  the  XjamllonVs  Rcmtdij  against  third  I^crsons, 


JsECTioN   I.     Bi/    Action   on    the    Case  fur    Nuisances^    to 
the  Injury  of  his  Jieicr.siun. 

Section  IF.  Bj/  Action  aixainst  the  Sheriff,  on  Stat.  i). 
Ann.  c.  11.  for  reinovini^  the  Tenant's 
Goods  under  an  Execution  ivithout  paying  a 
Year's  Bent. 

Sfxtion  III.  By  Action  on  the  Sfat.  11  G.  2.  r.  10. 
for  assisting  the  Tenant  in  a  fraudulent 
Bcmovcd  of  his  Goods. 


Sfxtion  I.    Action  on  the  Case  for  Nnisevices  to  the  In- 
jury to  his  Reversion. 

AN  action  of  treppass  on  the  case  lies  for  a  ntii'-aiice  to  tlic  hahlfa- 
lion  or  estate  of  anotlicr,  hy  which  rcmecly  ihc  lainlloid  may  recover 
damages  commcTisnrate  with  the  de;:!;ree  of  injury  that  he  ha?  pustainrd 
T)y  the  deterioration  of  tiiat  property  of  which  the  reversion  is  in 
him. 

Indeed,  toucliint;  the  remedies  affordctl  to  tlie  landlord  and  tlio  ten- 
ant respectively  for  a  nuisance  to  the  thing  demised,  an  action  nuiy  he 
brought  by  one  in  respect  of  his  inheritance*  for  the  injury  done  to  the 
value  of  it,  and  by  the  otlicr,  in  respect  of  his  possession  (/i). 

As,  if  a  man  have  an  ancient  house,  and  anotlicr  build  %-^  nc.ir  as  to 
darken  his  windows,  he  may  have  rm  action  upon  tlie  case  (/'). 

So,  if  a  man  build  a  new  house,  and  afterwards  grant  the  adjacent 
soil,  and  the  grantee  by  an  etlifice  upon  it  stop  tlie  lights  .if  the  oincr 

'.ciJiDur  li'ijl  i>,  Cora  W\i  tit    "  Acilori,  fcc   for  ■  Nuiiuic«  "  [A.J 

CO 


462  Action  on  the  Case  for  Xtiisanccs,      [Chap.  XVII. 

house,  though  it  Mas  not  an  ancient  house  ;  for  if  a  man  build  a  new 
house  upon  a  part  of  his  land,  and  alterw  ards  seil  the  house  to  another, 
i:cithcr  Ihe  vcntlor  nor  any  other  claiming  under  him,  may  stop  the 
lij^lits  :  but  if  he  Fell  the  vacant  ground  to  another,  and  keep  the 
house  without  reserving  the  benefit  of  the  lights,  the  vendee  may 
build  (a). 

A  custom  that  one  may  build  upon  a  new  foundation  to  the  obstruc- 
tion of  ancient  lights,  is  void  (^). 

If  the  lights  of  the  house  be  stopped  up  by  throwing  logs,  <?-c.  this 
action  will  lie  (r ). 

If  a  man  fixes  a  spout  to  his  own  house,  from  whence  the  rain  falls 
into  the  yard  of  another,  and  hurts  the  foundation  of  his  buildings; 
this  action  will  lie. — So,  if  a  man  dig  a  pit  in  his  land,  so  near  that  my 
land  falls  into  the  pit  (c/). 

So,  it  lies  against  one  who  erects  any  thing  offensive  so  near  the 
house  of  another,  that  it  becomes  useless  thereby,  as  a  swinesty,  or  a 
lime-kiln,  or  a  dye-house,  or  a  tallow-furnace,  or  a  privy,  or  a  brew- 
house,  or  a  tan-vat,  or  a  smelting-house,  or  a  smith's  forge  (f). 

So,  if  a  man  erect  a  w  atch-house,  sta!)le,  ^-c.  and  put  filth  in  it,  to  the 
annoyance  of  a  garden  (/). 

So,  if  a  parson  pern)it  the  tithes  to  continue  upon  the  soil,  so  that  the 
grass  there  is  corrupted  ;  or  a  vendee  of  hay,  after  the  time  agreed  for 
carrying  it  away  (p-). 

So,  if  a  lessee  over-charge  his  room  with  weight,  whereby  it  falls 
upon  the  cellar  beneath  (^). 

So,  if  a  man  who  ought  to  inclose  against  my  land,  do  not  inclose, 
by  which  the  cattle  of  his  tenants  enter  into  my  land,  and  do  damage 
to  me.  But  the  action  must  be  brought  against  the  person  in  posses- 
sion :  for  it  is  clear  that  an  action  on  the  case  for  not  repairing  fences 
"whereby  another  party  is  damnified,  cannot  be  supported  against  the. 
owner  of  the  inheritance,  when  it  is  in  the .  possession  of  another 
person.  Deplorable  indeed  \vould  be  the  situation  of  landlords,  if  they 
were  liable  to  be  harrassed  with  actions  for  the  culpable  neglect  of  their 
tenants  (^■). 

So,  an  action  upon  the  case  lies,  if  a  man  erect  a  mill  so  near  to  my 
ancient  mill,  tliat  the  water  to  my  mill  is  obstructed  or  diverted.  So, 
if  part  only  of  the  stream  is  diverted.  So,  if  he  stop  a  w  ater  course, 
whereby  my  land  a\  as  overflowed.  So,  if  water  has  been  accustomed 
to  run  to  his  well,  and  from  thence  to  his  house  for  his  use,  and  one  di- 
verts the  stream  from  coming  to  the  well  (A). 

So,  a  man  i)ossessed  of  an  ancient  ferry  may  bring  an  action  against 


("}  Rull.  N.  P.   75.                        (5)  Com.  Di<:  vt   nnte. 

(c)  Ibid. 

(rf)  Tbid. 

C')  U)id.                      (/;  Ibid.                     {g)  Ibid. 

(h)  Ibid. 

ft)  Bull.  A.  P  74. 

ijk)  Com.  Dig.  ut  antt. 

i 


»Stcl.  l.j  to  Uic  Injur}/  of  his  lievtrsion.  403 

one  who  pels-  up  a  tu;\v  ferry  near  lo  il  ;  for  if  it  I)'*  an  ancient  ferry,  he 
is  conij)rllal>lf:  lo  kctp  boats,  A'v.  ("). 

So,  if  without  warrant  one  erect  a  market,  to  the  prejudice  of  an- 
other  market  (A). 

So,  if  the  soil,  over  which  another  hi?  a  way,  he  p!  m  licrl  h\-  Hm' 
tenant  of  the  ianil,  it  is  a  nuisance  (r). 

If  tiic  nuisance  he  to  the  damage  ol  the  inheritance,  lie  in  revtr.  ion 
shall  have  an  action  for  it ;  notwithstanding  l!mt  plaintiJ'  mii^ht  have 
«in  assise,  or  guod  pmnittut  (J). 

The  action  lies  as  well  against  him  who  continues  ilic.  nuisance  ns 
against  him  who  originally  erected  it  :  for  though  tiie  party  having 
recovered  in  one,  cannot  have  anotlier  action  for  the.  same  ercctiju,  he 
may  maiiitaui  a  new  action  for  the  continuance  of  it  (f ). 

So  if  J.  recover  damages  against  B.  for  slopping  his  lights,  and 
afterward  B.  assign  the  lands  in  which  the  nuisance  was  erected,  .-/. 
may  jnainlain  another  action  against  B.  for  the  continuance  of  the 
nuisance;  for  before  the  assignment  B.  wa:winswtrable  for  all  the  con- 
sequential damages,  and  it  shall  not  l)e  in  fts  power  to  (^ischarqe  hiin- 
.^clf  by  granting  H  over  :  yet  //.  may  bring  the  action  against  the  as- 
-ignee.  Though  formerly  a  distinction  was  taken,  viz.  where  the 
contiiniance  occasions  a  new  nuisance,  and  where  the  first  erection  has 
<lonc  all  the  'mischief^;  that  in  the  first  case  the  assignee  is  lialjle  to  an 
action,  but  not  in  the  second  (/)• 

So,  if  7.  divert  water  by  a  pipe  and  cock  to  liis  house,  an  action  lies 
against  his  wife  after,  his  death,  if  slic  lives  in  the  house,  and  uses  the 
water,  for  every  turning  of  the  cock  is  a  new  niiisance  {:{). 

So,  if  a  man  erect  a  house  or  mill  to  tiie  nuisance  of  anotI:er,  every 
occupier  afterwards  is  sul^ject  to  an  action  for  the  nuis.ujce  (//). 

So,  if  a  man  recover  against  A.  for  the  erection  of  a  nuisance,  he 
may  afterwards  maintain  an  action  against  him,  for  the  continuance 
of  it  ;  and  liiis,  although  he  had  made  a  lease  to  another,  for  the 
plaintiif  might  bring  the  action,  notuillistandin:;  his  recovery  for  the 
erection,  against  either  the  tenant  for  years  or  his  under  lessee,  at  his 
f-iection  (/). 

All  these  cases  go  upon  this  prlnciplo,  that  every  man  fhould  so  use 
Ids  own  as  not  to  damnify  another  ;  for  some  damage  must  be  proved 
in  order  to  sustain  this  action  ;  the  mere  act  of  divert  inz  a  w  ater-cour?e* 
iVcC.  not  being  sufficient,  if  it  do  no  injury  to  the  plainliil's  inheritance, 
or  possession  {k). 

Of  I  he  UedaralLon. — In  an  action  ujion  the  case  fi)r  a  nuisance,  the 
plaintiir  must  shew  himself  entitled  to  the  thing  to  w  hich  the  nuisance 

(o)  BmU.  N.  p.  175.}  (6;  Cnm.  His.  irJ  nn/e.  (e)\\>\i\.  Cdj  Com.  Dig.  ulnn/«.  B. 

,'<!)    1  Ld.  Bavin.  370.         f/J  UuII    \.  V.  75.        T/J  fiim.  Die.  li*.  "  Anion,  iir   for  a  ii:;ii»ure."  [  1  ] 

/ ,;  Cro.  Jic.  5>;  yi)  S^iW.  48a  Ct)  ^'^-  '"••  P-."*-  ^^^^^  f^>*- J 


464         Action  on  the  Case  for  Nuisances,        [Chap.  XVII. 

M'as  done,  at  the  time  of  the  nuisance  :  as  in  this  action  for  diverting 
his  water-course  to  his  mill,  he  must  shew,  that  he  was  seised  of  the 
mill  at  the  time  :  bat  a  seisin  in  law  is  sufficient  for  this  action  {a). 

Therefore,  if  the  plaintiff  alledge  that  his  father  was  seised  and  died, 
and  a  discent  to  himself  by  virtue  of  which  he  was  seised,  without 
saying  that  he  entered,  it  will  be  well  (/>). 

But  in  such  action  the  plaintiff  need  not  set  forth  his  title  to  the 
premises ;  it  is  sufficient  for  him  to  shew  that  he  was  possessed  of 
them  (r). 

He  ought,  also,  to  shew  that  the  diversion  was  a  prejudice  to  his 
mill :  for  as  damage  must  be  proved,  such  allegation  is  materia!  (cf). 

So,  he  ought  to  alledge  a  continuance  of  the  nuisance  to  the  time  of 
the  action  only,  for  adhuc  continuntuvi  existit  is  ill  ;  for  that  goes  to 
the  time  of  the  declaration.  But,  if  the  declaration  shews  a  continuing 
nuisance,  it  is  not  material,  though  the  first  nuisance  was  before  the 
plaintiff  was  entitled  (e). 

So,  if  the  plaintiff  ailed^,  that  his  house,  mill,  8rc.  was  an  ancient 
house,  Src.  without  prescriftng  for  it,  or  that  it  was  anciently  erected ; 
for  that  is  tantamount  {f  )• 

So,  a  declaration  for  stopping  lights  is  sufficient,  though  it  do  not 
say  an  ancient  messuage :  and  if  the  plaintiff  alledge  that  he  was  pos- 
sessed of  such  a  house,  ike.  in  which  he  ought  to  have  so  many  lights, 
&,c.  without  more,  it  is  sufficient  (^). 

So,  a  declaration  for  diverting  a  water-course,  which  was  used  to  run 
to  a  well,  and  from  thence  to  his  house,  is  sufficient ;  though  it  do  not  say 
from  what  place  it  runs  to  the  well.  This  was  ruled  after  verdict,  for 
it  ought  to  be  proved  (h). 

So,  a  declaration  against  a  man  for  causing  water  to  flow  through 
pipes  near  the  foundation  of  the  plaintiff's  house,  and  neglecting  to  re- 
pair them,  so  that  the  water  flowed  through  them  and  sapped  the 
foundation  of  the  plaintiff's  house,  is  unexceptionable  after  verdict 
though  it  do  not  expressly  state  that  the  pipes  were  the  defendant's, 
that  he  laid  them  there,  or  that  he  is  bound  to  repair  them  (/). 

Touching  the  pleas  to  this  action,  the  general  issue  is,  not  guilty . 
which  may  be  pleaded  where  case  is  brought  for  a  nuisance  in  over- 
hanging the  plaintiff's  house,  Si.c.  or  for  a  nuisance  in  stopping  his 
lights  {k). 

So,  the  custom  of  the  city  oi  London,  by  which  a  man  may  build 
upon  an  ancient  foundation  against  the  lights  of  another  ;  to  which  the 
plaintiff  may  reply  by  denying  the  custom,  which  shall  be  tried  by  the 
mouth  of  the  Recorder  (/). 

fa^  Com.  Dig.  tit  ajite.  [E.  1.]  (6)  Ihifl.  (c)  2   Ld.  Raym.  15fi!». 

W)lbid.  («)  Ibifl.  (/)  Ibid.  f^)  Ibid.  1  Tidd'e  Pract.  396. 

(A)  3  Ld.  Raym.  15C9.  C;  Ibid.  (h)  Com.  Dig-lut  ante.  [F.  2.]  il)  \b\ii. 


Sect.  II.]     Of  the  Acliun  against  the  Sheriff,  Ss'r.  405 

Ijiit  to  an  action  upon  tlic  case  for  a  milsancc  the  defendant  cannot 
plead,  that  Ijcing  a  blacksmith,  ho  came  to  the  house  wlicrein  he  du oils, 
by  the  advice  of  tlic  plaintiiV  himself,  and  there  erected  a  forge  for  Im 
trade  («). 

In  an  action  for  diverting  a  water-course,  the  defendant  pleaded, 
that  he  was  seised  of  two  closes  through  which,  A'r.  and  that  he  and 
all  those,  <SV.  had  used  to  water  llirir  cattle  ir  the  same  water-course, 
&c.  and  the  Court  held  th.it  one  prescription  could  not  l)e  plearleil 
against  another,  without  a  traverse :  hut  if  upon  the  general  issue  it 
had  been  proved  that  the  water  was  usually  drunk  up  by  the  cattle  of 
the  defendant,  the  plainliin>ould  have  failed  in  his  prescription  (/')• 

If  the  verdict  finds  generally,  tliat  the  house  is  not  erected  u\)on  the 
ancient  foundation,  the  whole  shall  be  abated,  though  it  exceed  only  a 
foot  (r). 

Section  II.]  Of  the  Action  on  the  Case  against  the 
Sheriff'  for  renioving  Goods  vndir  an  Execution^  nifhont 
jKii/ini^  a  Year's  Jicnty  hij  Virtue  of  the  Stat.  i\  Aiiu. 
t.  11. 

Executions  at  common  law  took  place  of  all  del)ts  that  were  not  spe- 
cific liens ;  even  of  rents  due  to  landlords.  At  leni;th,  it  being  thought 
hard  that  landlords  should  not  have  something  like  a  specific  lien.  Par- 
liament gave  them  a  remedy  for  one  year's  rent,  but  no  more,  because 
vigiiantihus  ct  non  dormicntibusjura  suljvcnicnt  ((/). 

The  remedy  in  question  is  by  action  on  the  case  by  virtue  of  the  slat. 
8  .hin.  r.  I'i.  for  the  more  easy  and  effectual  recovery  of  rents  reserved 
on  leases  for  life  or  lives,  term  of  years,  at  will,  or  otherwise,  by  sect. 
1.  of  which  it  is  enacted,  "  That  no  goods  or  clialtels  whatsoever,  ly- 
ing or  being  in  or  upon  any  messuage,  lands  or  tenements  \\  hich  are, 
or  shall  be  leased  for  life  or  lives,  term  of  years  at  will,  or  otherwise, 
shall  be  liable  to  be  taken  by  virtue  of  any  execution  on  any  pretence 
■whatsoever,  unless  the  party  at  whose  suit  the  said  execution  is  sued  out 
shall  before  the  removal  of  such  goods  from  off  the  said  premises,  by 
virtue  of  such  execution  or  extent,  pay  to  the  lindlord  of  the  said  pro- 
jiiiscs  or  his  bailiff,  all  such  sum  or  sums  of  money  as  are  or  shall  be 
due  for  rent  for  the  said  premises  at  the  time  of  the  taking  such  goods 
or  chattels  by  virtue  of  such  execution;  j)rovidcd  the  said  arrears  do 
Dot  amount  to  more  than  one  year's  rent :  and  in  case  the  said  arrears 


'a\  Com  Die-  «t  mU.  'F  2  )  (6)  Bull.  N  P  7V  '  fr)  Cob.  Dig.  vt  ante. 

dC'Wili-.  MI. 


466  Of  the  Action  against  the  Sheriffy     [Chap.  XVII. 

shall  exceed  one  year's  rent,  then  the  said  party,  at  whose  suit  such 
execution  is  sued  o.it,  paying  the  said  landlord  or  his  baililTone  year's 
rent,  may  proceed  to  execute  his  judgment,  as  he  might  have  done  be- 
fore the  i^iakini^  of  the  act ;  and  the  sheriiT  or  other  officers  are  thereby 
empowered  and  required  to  levy  and  pay  to  tlie  plaintiff,  as  well  the 
money  so  paid  Tor  nint,  as  the  ex^^^^cution  money. 
.  Sect.  8.  "  Provided-  always,  that  nothin<j  in  the  Act  contained  shall 
be  construed  to  cxi:^nrl  to  hinder  or  prejudice  her  [his]  Majesty,  her 
[hisj  heirs  or  successors,  in  the  levyiny^,  recovering  or  seizing,  any 
debts,  fines,  pentiities,  or  forfeitures  due  or  payable  to  her  [his]  Ma- 
jesty, v^c.  but  tl-d  it  sliall  and  may  be  lawful  for  her  [his]  Majesty,  S<.c, 
to  ievy,  recover,  and  seize  such  debts,  ^c,  in  the  same  manner  as  if  the 
Act  had  never  been  made." 

Tliis  statute  shall  have  a  liberal  construction  :  and  the  words  "  party 
at  whose  suit  the  execution  is  sued  ou!,"  ^c.  shall  be  construed  to 
mean  either  the  plaintilf  or  defendant,  whose  judgment  and  execution 
it  is  (ci). 

The  action  lies  by  an  executor  or  administrator  against  the  bailifTof  a 
liberty  for  exrculing  di  fieri  facias,  and  removing  the  goods  oiT  the  pre- 
mises beforf^  the  landlord  was  paid  a  year's  rent :  for  the  testator  or  in- 
testate had  an  interest  for  which  his  executor  or  administrator  may 
bring  an  action  (<^). 

But,  where  the  goods  were  taken  and  the  money  levied  before  admi- 
nistration taken  out,  it  w  as  heid,  that  as  execution  was  executed,  that 
is  to  say,  as  the  goods  were  actually  sold,  the  administrator  came  too 
late.  Powis,  J.  uas  however  of  opinion,  it  sec.ms,  tiiat  the  adminis- 
tration should  have  relation  to  the  lime  of  the  death  of  the  intestate, 
because,  by  the  ecclesiastical  law,  it  is  not  to  be  granted  till  witliin 
fourteen  days  of  an  intestate's  death  :  but  the  rest  of  the  Court  denied 
this  proposition  ;  for  relations  which  are  but  fictions  in  law,  shall  not, 
they  said,  devest  any  right  vesled  in  a  stranger  mesne  between  the  in- 
testate's death  and  the  administration.  The  statute,  it  is  true,  wai 
made  for  the  benefit  of  landlords,  and  to  prevent  tlie  tenant's  setting  up 
a  sham  execution  to  defeat  him  of  the  rent.  He  has  still  the  same  re- 
medy that  he  had  before,  and  if  he  will  have  the  additional  remedy, 
he  must  make  himself  capable  of  it,  which  the  administrator  here  could 
not.  He  could  not  demand  the  rent,  it  not  being  certain  that  he  would 
be  administrator,  for  the  ordinary  might  refuse,  and  the  sheriii.'  is  not 
obliged  to  wait  and  see  if  any  body  comes  and  demands  the  rent,  fie 
cannot  take  notice  what  arrears  there  are;  but  if  t!ic  landlord 
comes  and  acquaints  him  with  it,  then,  and  not  till  then,  is  he  obliged 


(a)  2  Wils.  Ut.  (6)  1  Str.  213.    Fort.  350,  350. 


I 


Sect.  II.]  for  rnnovin!^  Gauds,  AV.  107 

to  see  the  year's  rent  satisfied  before  removal  of  tlic  qjond?.  If  it  should 
be  otlieru  ise,  it  would  he  in  the  pouer  of  him  that  is  entitled  to  ndmi- 
niiitration  to  d(  feat  the  plaintiH Of  his  execidion  ;  for  suppose  he  never 
takes  administration,  must  the  execution  stand  Ptiil  ?  If  the  landlord 
himself  had  not  demanded  l)»'fore  removal,  he  had  Ixen  too  late  :  here 
"was no  landlonl,  at  all,  so  that  tliere  could  Ijc  (i.>(I(  niand,  and  ft  i>>  now 
too  late  to  ask  it  {n). 

Therefore  notice  to  the  sherili"  is  necessary  in  order  tosidiject  him  to 
an  action  for  removin'^^  the  goods  before  a  year's  rent  f>e  paid  (/!>) ;  fur 
neither  a  plainti.'l  nor  defendant  has  any  right  to  ^o  upon  the  premi- 
ses, and  the  law  gives  the  entry  to  tlie  sherilf  only  f)y  virtue  of  the  ex- 
ecution ;  but  after  he  has  notice  of  rent  beini;;  due  to  the  landlord,  he 
cannot  remove  tlu.'  gooils  before  he  has  satisfied  the  landlord  one  year's 
rent.  The  landlord  shall  have  the  like  benefit  of  dislress  for  one  year's 
rt^nt  as  if  there  had  been  no  execution  at  all :  unless  the  rent  be  paid, 
the  slieriil  nuist  quit,  and  if  he  do  not  quit,  a  special  action  on  the 
case  lies  against  him  after  notice  of  the  rent  due  (r). — The  want  of  al- 
ledging  notice,  however,  is  helped  by  the  verdict  (</). 

The  landlord's  rent  nuist  be  paid  without  any  deduction;  the  sher- 
iir  therefore  cannot  claim  poundage  of  him  (f ). 

The  remedy,  as  before  observed,  is  for  one  year's  rent  and  no  more. 
Therefore,  where  there  are  two  executions,  the  landlord  cannnt  have  a 
year's  rent  on  each:  for  the  intent  of  the  Act  was  ojily  to  continnc  a 
lien  as  to  one  year,  and  to  punish  him  for  his  laches,  if  he  lei  more 
run  in  arrear  (/). 

If  the  gooils  seized  be  not  sold  or  removed  by  the  sherilT,  so  as  to 
transfer  the  property  therein,  but  the  defendant  pays  tlie  debt  and 
costs,  the  landlord,  though  he  has  given  notice  and  demanded  the  rent, 
is  not  entitled  i?i  such  case. 

A  bill  of  sale  was  made  by  the  shcrifl",  and  ft  was  held  to  be  a  re- 
moval of  the  goods  taken  by  a  writ  o(  fieri  facias  (rr). 

If  an  extent  comes  in,  the  landlord  cannot  chiin  'jis  rent  although  a 
distress  be  taken  the  day  before So,  on  extent  or  an  oulliury,  al- 
though he  had  di-'trained  three  days  jjreviousto  the  entry,  and  r.iftion 
be  made  to  be  paid  under  the  statute;  but  ihU  is  denied.  If  a  dis- 
tress be  taken  Ortohrr  2'J,  and  an  exteut  dated  Xovcinbrr  4,  and  corn, 
&.C. seized,  the  landlord  cannot  have  'lis  r;nt,  for  no  property  was  de- 
vested by  the  distress,  and  they  were  iA  the  landlord's  han  s  by  way 
of  pledge  ;  but  an  alt^uhment  was  refused,  although  it  was  a  contempt 
to  oppose  the  extent  (/;). 

(a)  I  ?tr.  97.  .  (fc)  Ibid,  k  21*.  (e  1'  Witi   III.  (rf;  1  Str.iU 

(t)  If.id  r,i3.  r/;2Str.  inci  (fj  B»rn  SU 

(h    laip.  SherilT.  170,  Sic     Burn'i  Ju*l.  tit.  "  Diitreti."'  xrij. 


468     Of  the  Action  against  the  Sheriffy  8Cc,    [Chap.  XVII. 

An  immediate  extent  against  the  king's  debtor  tested  after  a  dis- 
tress taken  for  rent  justly  due  to  the  landlord,  with  notice  to  the  te- 
nant being  the  king's  debtor,  and  appraisement  of  the  goods  and  chat- 
tels, but  before  sale,  shall  prevail  against  the  distress  (a). 

A  distinction  has  been  taken  bet\veen  proceedings  at  the  suit  and  for 
the  benefit  of  the  crown,  and  an  outlawry  in  a  civil  suit  {b)  :  and  in 
the  latter  instance  it  has  been  ruled  that  "  the  landlord  ought  to  be 
satisfied  a  year's  rent,  because  a  capias  vtlagatum  at  the  suit  of  the 
party  is  to  be  considered  only  as  a  private  execution,"  but  if  the  out- 
lawry be  reversed,  it  would  be  otherwise  (c). 

A  commission  of  bankrupt  is  not  considered  as  an  execution  quoad 
hoc:  therefore,  as  a  landlord  may  on  the  one  hand  distrain  for  his 
whole  rent  after  assignment  or  sale  by  the  assignees,  if  the  goods  are 
not  removed,  so  on  the  other  hand,  if  he  suffer  the  assignees  to  sell  off 
the  goods,  he  is  not  entitled  to  his  rent,  but  must  come  in  pro  rata 
with  the  other  creditors  under  the  commission  (d). 

The  ground  landlord  of  a  house,  in  which  an  under-lessee  dwelt, 
against  whom  an  execution  was  sued  out,  is  not  within  the  statute, 
which  extends  only  to  the  immediate  landlord  (c). 

In  an  action  against  the  sheriff  for  taking  goods  without  leaving  a 
year's  rent  the  declaration  need  not  state  all  the  particulars  of  the  de- 
mise :  but  if  it  do,  and  they  are  not  proved  as  stated,  there  shall  be 
a  nonsuit.  The  distinction  is  between  that  which  may  be  rejected  as 
surplusage  which  might  have  been  struck  out  on  motion,  and  what 
cannot. — Where  the  declaration  contains  impertinent  matter,  foreign 
to  the  cause,  and  which  the  Master,  on  a  reference  to  him,  would  strike 
out  (irrelevant  covenants  for  instance,)  that  will  be  rejected  by  the 
Court,  and  need  not  be  proved.  But  if  the  very  ground  of  the  actios 
is  mis-stated,  as  where  you  undertake  to  recite  that  part  of  a  deed  oa 
which  the  action  is  founded,  and  it  is  mis-recited,  that  will  be  fatal : 
for  then  the  case  declared  on  is  different  from  that  which  is  proved, 
and  you  must  recover  secundum  allegata  et  probata  (/). 

The  landlord  is  not  always  driven  to  this  action  for  his  remedy,  for 
there  is  a  shorter  way,  by  motion  to  the  Court, that  he  may  have  resti- 
tution to  the  amount  of  the  goods  the  sheriff  has  sold ;  as  in  the  prin- 
cipal case,  in  which  the  bailiff  become  a  wrongdoer  immediately  after 
he  had  notice  of  rent  being  due  to  the  landlord  (^). 

Instead  of  bringing  an  action  against  the  sherLS",  See.  when  the  goods 
are  sold  after  notice,  the  best  way  for  the  landlord  is  to  move  the  Court» 

(a)  Park.  R.  1 12.    2  Ves.  288.  (b)  Imp.  Sheriff.  171.  (c)  7  T.  R  284. 

(d)  1  Atk.  103.  (<}  2  Str.  707.  if)  Doug.  805.     1  T.  R.  236 

Cy)  2  WiU.  1*!. 


I 


Sort.  in. J  The  I.andlonVs  Ticmcdij,  S\c.  4C9 

that  he  may  have  rcstifutinn  to  the  amount  of  the  looils  whicli  the 
.b'hcii;!"  has  sol. I,  if  they  amount  to  less  than  a  year's  rent,  or  if  they 
aiuoiml  to  more,  then  to  Iiavc  fo  mueh  as  \4  ill  satisfy  a  year's  rent  [n). 
On  motion  t<>  iiivc  r'rit  p.iid  out  of  the  money  levied,  it  appeared 
tliat  the  sheriff's  warr;  nt  on  the  oxocntion,  after  it  was  scaled,  hud 
l>een  altered,  and  a  new  hailiil's  name  inserted.  I*er  Cur.  The  war- 
rant fieinu^  altered,  no  i^oods  are  taken  in  execution  thereby.  Let  the 
bailiil  and  attorney  privy  to  the  alteration,  shew  cause  wliy  an  attach- 
ment should  not  issue  atjain?!  them  {!i). 


Section  III.  The  Lnnd/orcVs  Rtmidtj  on  I  he  Stafnfc  11 
G'^'O.  2.  c.  19.  touching  Goods  fraudulcnt/j/  carried  off 
the  Premises, 

Tlic  statute  II  G.2.  c.  19.  s.  1.  enacts  that  "  In  case  any  tenant 
or  tenants,  lessee  or  lessees,  for  life  or  lives,  term  of  years,  at  will, 
sufferance,  or  otherwise,  of  any  messuages,  lands,  tenements,  or 
h-reilitamonts,  upon  the  demise  or  holdin*^  whereof  any  rent  is  re- 
served, sliall  fraudulently  or  clandestinely  convey  away  or  carry  o/Tor 
fiHjm  such  premises  his,  her,  or  their  goods  or  chattels,  to  prevent 
the  lanJIord  or  lessor,  tandlords  or  lessors,  from  distraining  the  same 
for  arrears  of  rent  so  reserved,  it  shaH  l)C  lawful  to  or  for  every  land- 
lord or  lessor,  land  ords  or  lessors,  or  any  person  or  persons  hy  him, 
her,  or  th;  ni  for  tliat  purpose  lawfully  im[)OW'ered,  within  the  space  of 
thirty  days  next  ensuing  such  conveying"  away  or  carrying  olF  such 
goo  Is  or  chattels,  to  take  and  seize  such  goods  and  chattels  wherever 
the  same  shall  he  found,  as  a  distress  for  the  said  arrears  of  rent ;  and 
the  same  to  soil  or  olherw  ise  dispose  of,  in  such  maruier  as  if  the  said 
goods  and  chattels  had  aclually  heen  distrained  I)y  such  lessor  or  land- 
lord, lessors  or  landlords,  in  and  upon  such  premises  lor  such  arrears  of 
rent." 

Sect.  2.  "  Provided  always  tliat  no  landlord  or  lessor,  or  other  per- 
son entitled  to  such  arrears  of  rent,  shall  take  or  seize  any  such  goads 
or  chattels  for  the  same  which  shall  he  sold  boniifidc^  an<l  for  a  valua- 
])le  consideration,  before  such  seizure  made,  to  any  person  or  p:r"0)i« 
not  privy  to  such  fraud  as  aforesaid." 

Hy  sect.  3.  "  To  <leter  tenants  from  such  fraudulent  conveying  away 
their  gooils  and  chattels,  and  others  from  wilfully  aiiling  or  assisting 
therein,  or  concealing  the  same,  it'is  enacted  th.it  if  any  person  or 

'   (n)  2  Sfll    Prarf    570.  {h)  B»r.  1«. 


470  77/e  Landlord's  Bemcdy  [Chap.  XVIL 

persons  shall  Avilfully  and  knowingly  aid  and  assist  any  such  tenant  or 
lessee  in  siicli  friuidiilent  convcyhig  away  or  carrying  off  of  any  part 
of  his  or  her  goods  or  chattels,  or  in  concealing  the  same,  all  and  every 
Y)erson  and  persons  so  oilendiiig  shall  forfeit  to  the  landlord  or  iasid- 
lords,  lessor  or  lessors,  from  Avliose  estate  such  goods  and  chattels  v.  ( re 
fraudulently  carried  off  as  aforesaid,  double  the  value  of  the  goods  by 
him,  her,  or  them  respectively  carried  off  or  concealed  as  aforesaid  ; 
to  be  recovered  by  action  of  delit  in  any  of  his  Majesty's  Courts  of 
Record  at  Westminster,  or  in  the  Courts  of  Session  in  the  counties  pala- 
tine of  Chester,  Lancaster,  or  Durham,  respectively,  or  in  the  Courts  of 
Grand  Sessions  in  IFales,  wherein  no  essoin,  protection,  or  wager  of  law- 
shall  1)6  allowed,  nor  more  than  one  imparlance." 

Sect.  4.  "  Provided  always,  that  where  the  goods  and  chattels  s© 
fraudulently  carried  off  or  concealed  shall  not  exceed  the  value  of  50/. 
it  shall  be  lawful  for  the  landlord  or  landlords,  from  whose  estate  such 
goods  and  chattels  were  removed,  his,  her,  or  their  bailiff,  servant  or 
agent,  in  his,  her,  or  their  behalf,  to  exhibit  a  complaint  in  writing 
against  such  offender  or  offenders,  before  two  or  more  justices  of  the 
peace  of  the  same  county,  riding,  or  division  of  such  county,  residing 
near  the  place  whence  such  goods  and  chattels  were  removed,  or  neat 
the  place  where  the  same  were  found,  not  being  interested  in  the  lands 
or  tenements  whence  such  goods  were  removed  ;  who  may  summon 
the  parties  concerned,  examine  the  fact,  and  all  proper  Avitnesses  upon 
oath,  or  if  any  such  witness  be  one  of  the  people  called  Quakers,  upon 
affirmation  required  by  law  ;  and  in  a  summary  way  to  determine, 
whether  such  person  or  persons  be  guilty  of  the  offence  with  which 
he  or  they  are  charged  ;  and  to  enquire  in  like  manner  of  the  value  of 
the  goods  and  chattels  by  him,  her,  or  them  respectively  so  fraudu- 
lently carried  off  or  concealed  as  aforesaid  ;  and  upon  full  proof  of  the 
offence,  by  order  under  their  hands  and  seals,  the  said  justices  may 
and  shall  adjudge  the  offender  or  offenders  to  pay  double  the  value  of 
the  said  goods  and  chattels  to  such  landlord  or  landlords,  his,  her,  or 
their  bailiff,  servant,  or  agent,  at  such  time  as  such  justices  shall  ap- 
point :  ajid  in  case  the  offender  or  offenders,  having  notice  of  such 
order,  shall  refuse  or  neglect  so  to  do,  may  and  shall,  by  warrant 
under  their  hands  and  seals,  levy  the  same  by  distress  and  sale  of  the 
goods  and  chattels  of  the  offender  or  offenders,  and  for  want  of  such 
distress,  may  commit  the  offender  or  offenders  to  the  house  of  correc- 
tion, there  to  be  kept  to  hard  labour,  without  bail  or  mainprize,  for 
the  space  of  six  months,  unless  the  money  so  ordered  to  be  paid  as 
aforesaid  shall  be  sooner  satisfied." — Sect.  5.  "  Provided  always  that  it 
shall  be  lawful  for  any  person  who  thinks  himself  aggrieved  by  such 
order  of  the  said  two  justices,  to  appeal  to  the  next  General  or  Quarter 


Sect.  IH.]         OH  Ihr  Stntulr.   11   C.  ±  c.  19.  171 

Sessions,  for  (he  sanie  county,  \»ho  may  and  sliall  liear  and  dctcnuiiic 
such  upppal,  and  i^ivc  «iicli  costs  to  citlicr  party  as  tlu'V  sliall  tliink  r«.a- 
sonal)lc,  whose  flotcruiination  tlicrcirj  shall  l>c  final." — Sect.  0.  "  I'rov  i- 
dp(l  also,  that  where  the  party  appealing  shall  enter  into  recognizance 
with  one  or  two  snilicicnt  surety  or  sureties  in  (lo!il)lc  the  sum  so  order- 
ed t.>  he  paid,  u  ith  condition  to  appear  at  siicli  General  or  (inurter 
Sessions,  the  order  of  the  said  two  justices  shall  not  be  executed  against 
liini  in  the  mean  (inic." 

By  F'ct.  7,  it  is  further  enacted,  "  That  where  any  goods  or  c!iattelr; 
fraiuhdintly  or  clandestinely  conveyed  or  carried  auay  by  any  tenant 
or  tenants,  lessee  or  lessees,  his,  her,  or  their  servant  or  servants,  agci>t 
or  agf^nts,  or  other  person  or  persons  aiding  or  assistini:;  therein,  shall 
be  put,  placeil,  or  kept  in  any  house,  barn,  stable,  oiit-housc,  y.ird, 
close  or  place  locked  up,  fastened,  or  otherwise  secured,  so  as  to  pre- 
vent such  goods  or  chattels  from  being  taken  and  seized  as  a  distress  for 
arrears  and  rent,  it  shall  be  lawful  for  the  landlord  or  landlords,  lessor 
or  lessors,  his,  her,  or  their  steward,  bailili",  receiver,  or  other  person 
or  persons  empowered  to  take  and  seize,  as  a  distress  for  rent,  such 
goods  and  chattels  (first  calling  to  liis,  her,  or  tlieir  assistance  the  con- 
stable, hca  Iborough,  t)orsholdcr,  or  other  peace  olhcer  of  the  hundred, 
l)orouu'ii,  parish,  district,  or  p'.ace,  wiicrc  the  same  shall  be  suspected 
to  be  concealed,  who  arc  hereby  required  to  aiil  and  assist  therein  ;  and 
in  case  of  a  dwelling-house,  oath  being  first  made  bcr)re  some  Justice 
of  the  peace  of  a  reasonable  ground  to  suspect  that  such  goods  or 
chattels  arc  therein)  in  the  daytime  to  l)rcak  open  and  enter  into  such 
house,  barn,  slal)le,  out-house,  yard,  close,  and  plac",  and  to  take  and 
seize  such  goods  and  chattels  for  the  said  arrears  of  rent,  as  he,  she  or 
they  might  have  done  by  virtue  of  this  or  any  former  Act,  if  such  goods 
and  chaUels  had  been  put  in  any  open  field  or  place." 

Justices  either  of  the  county  from  which  tiie  tenants  fraud4i!cntly  re- 
move goods,  or  of  til. it  in  v\  liich  they  arc  concealed  may  cojivict  the  of- 
fenders in  tlieir  respective  counties  (cf). 

But  in  order  to  justify  the  landlord  in  seizing,  under  this  statute, 
within  thirty  days,  goods  removed  olf  the  premises,  as  a  distress  for 
rent  wherever  found,  the  removal  must  have  taken  place  after  the  rent 
became  due,  and  must  have  been  secret,  and  not  open  and  in  the  face 
of  day,  as  in  such  case  the  removal  could  not  be  said  to  be  clandestine, 
within  the  meaning  of  the  statute  (0). 

An  averment  in  a  declaration  in  an  action  of  debt  on  Sect.  3.  of  this 
statute  to  recover  doulde  liic  value  of  goods  renioved  in  «)r  ler  to  pre- 
vent a  distress,  that  "  a  certain  sum  was  due  for  rent"  before  the  g  toils 

;/i)  I  Cild.  H    "*  (b)  3  Eap.  H.'.: 


472 


The  Landlord's  Timedy,  SCc.       [Chap.  XVII. 


•were  reraoved,  need  not  be  precisely  proved  as  laid  :  for  whether  5/. 
or  any  other  sum  were  in  arrear  is  perfectly  immaterial ;  the  damages 
not  being  to  be  measured  by  the  quantity  of  rent,  but  by  the  value  of 
the  goods  removed.  Besides,  the  gist  of  the  action  is  the  fraudulent  re- 
moval of  the  goods  from  the  premises  in  order  to  defeat  the  distress  ; 
it  was  therefore  immaterial  to  the  defendants  whether  one  sum  or  ano- 
ther were  due  for  rent,  for  in  either  case  they  are  guilty  of  a  tort. 
Where  the  variance,  therefore,  does  not  consist  in  any  part  of  the  con- 
tract, but  in  an  averment  of  matter  subsequent  to  the  contract,  such 
averment  being  merely  a  matter  of  inducement  to  the  action,  need  not 
he  precisely  proved  (n). 

So  the  notice  of  distress  may  be  abandoned  ;  for  a  party  may  distrain 
for  rent  and  avow  for  fealty  {b). 

[See  also  respecting  this  statute  as  it  regards  the  duty  of  a  magis- 
trate, tit.  Distress,  1  Burn's  Just.] 


(«)  3  T.  E.  6<5.  6. 


(b)  Ibid 


473  ] 


CHAPTER  Win. 

Of  the  licmcdies  for  Tenants  ag;ninsi  LcuuUords. 
Of  the  Action  of  lieplciin. 

i?£CTiON    I.     Of   the  Action. 
Section  II.     Of  the  Judixment,  S'r. 

Sfx'TION  I.     Of  the  Action  of  Beplcvin. 

THE  action  of  replevin  is  founded  upon,  and  is  the  regular  way 
of  contesting  the  validity  of,  a  distress:  being  a  re-dciivtry  of  the 
pledge,  or  thing  taken  in  distress,  to  the  owner,  by  the  sherijT  or  Ids  de- 
puty ;  upon  the  owner  giving  security  to  try  the  right  of  the  distress, 
and  to  restore  it,  if  the  right  be  adjudged  against  iuni ;  after  which 
tlic  distrainer  may  keep  it  til!  tender  made  of  suflicient  am-jiids,  but 
must  then  re-deliver  it  to  the  owner  (n). 

In  this  writ  or  action,  l)()th  the  jjlaintifl'  nr.d  defendant  arc  called 
actors  ;  the  plaintifl'suing  for  damages,  and  the  defendant  or  avowant 
to  have  a  return  of  the  goods  or  cattle  {h). 

Replevin  is  an  action  founded  on  the  right,  and  diflerent  from 
trespass,  or  detinue :  and  it  is  now  held,  that  as  no  lands  can  be  re- 
covered in  this  action,  it  cannot,  with  any  propriety,  be  considered  as 
a  real  action,  though  the  title  of  lands  may  incidenta'ly  come  in  ques- 
tion ;  as  it  may  do  in  an  action  of  trespass  or  even  dcid,  which  arc  ac- 
tions merely  personal  (r). 

In  our  account  of  this  action,  \\c  shall  endeavour  to  confine  our 
notice  of  it  as  it  regards  distress  for  rent,  or  cattle  damage  feasant; 
the  services  of  copyholders,  S:c.  being  without  the  scope  of  rm- rn!<. 
fiideration. 

JPio  may  fiavc  Replcviiu — This  remedy  may  be  said  to  l)e  of  comuiou 
•"ight :  for  if  a  man  by  his  deed  grant  a  rent  with  a  clause  of  distress, 

fa)  3  Bl  Com.  147.  'h)  Bac.  Abr.  Ut.  "  lUplSTiD,"  iic.  [A.)  (i-)  lOiJ. 


474  Of  the  Action  of  Replevin.        [Chap.  XVIII. 

and  grant  farther  that  the  party  shall  keep  the  goods  distrained  against 
gages  and  pledges,  until  the  rent  be  paid,  yet  shall  the  sheriil' replevy 
the  goods  distrained  ;  for  it  is  against  the  nature  of  such  a  distress  to  be 
irreplevisable,  and  by  such  an  invention  the  current  of  replevins  would 
be  overthrown  to  the  hindrance  of  the  commonwealth;  and  therefore 
it  was  disallowed  by  the  whole  Court,  and  awarded  that  the  defendant 
should  gage  deliverance  [that  is,  engage  to  deliver  the  distress  to  the 
owner  on  his  pledging  to  try  the  distrainer's  right  thereto]  or  else  go 
to  prison  («)• 

It  is  a  general  rule  that  the  plaintiff  ought  to  have  the  property  of 
the  goods  in  him  at  the  time  of  the  taking  :  but  there  are  two  kinds  of 
properties ;  a  general  property,  which  every  absolute  owner  hath,  and 
a  special  property,  as  goods  pledged  or  taken  to  manure  his  lands,  or 
the  like,  and  of  either  of  these  replevin  lies  (b). 

An  executor  may  have  a  replevin  for  goods  taken  in  the  lifetime  of 
his  testator  (c). 

So,  if  the  cattle  or  other  goods  of  a  feme  sole  be  taken  and  she  af- 
terwards intermarry,  the  husband  alone  may  have  replevin :  and  if  they 
join,  judgment  will  not  be  arrested  after  verdict,  because  the  Court 
will  presume  them  jointly  interested  (as  they  may  be,  if  a  distress  be 
taken  of  goods  of  which  a  man  and  woman  were  joint  tenants,  and  af- 
terwards intermarry)  ;  the  avowry  admitting  the  property  to  be  in  the 
manner  it  is  laid. — But  in  replevying  goods  which  a  wife  holds  as  exe- 
cutrix, this  action  cannot  be  brought  by  either  of  them  singly,  but  they 
must  be  joined  (d). 

Where  cattle  put  on  the  premises  for  the  purpose  of  taking  posses- 
sion wiiere  the  tenant  had  held  over,  were  distrained  by  the  tenant  on 
the  ground  of  being  damage  feasant,  on  replevin  being  brought  L. 
Kenyon  said.  The  case  is  too  plain  for  argument.  Here  is  a  tenant 
from  year  to  year,  whose  term  expired  upon  a  proper  notice  to  quit, 
and  because  he  holds  over  in  defiance  of  law  and  justice,  he  now  at- 
tempts to  convert  the  lawful  entry  of  his  landlord  into  a  trespass.  If  an 
action  of  trespass  had  been  brought,  it  is  clear  that  the  landlord  could 
have  justified  under  a  plea  oiliberum  tenementum. — If,  indeed,  the  land- 
lord liad  entered  with  a  strong  hand  to  dispossess  the  tenant  by  force, 
he  might  have  been  indicted  for  a  forcilile  entry  ;  but  there  can  be  no 
doubt  of  his  right  to  enter  upon  the  land  at  the  expiration  of  the 
term.  There  is  not  the  slightest  pretence  for  considering  him  a  tres- 
passer in  this  case,  and  therefore  there  must  be  judgment  for  the  plain^ 
tiir  (e). 

If  the  goods  of  several  persons  be  taken,  they  cannot  join  in  replevin, 
but  every  one  must  have  a  several  action  (/). 

(o)  Co.  Lit.  MS,  b.  (h)  Ibid.  (c)  Bull.N.  P.  53. 

(d)  Ibid.  Bae.  Abr.  tit,  "  Replevin,"  kc.  [G].  (t)  7  T.  R.  421.  (f)  Co.  Lit.  145.  fc. 


Sett.  I.]  Of  the  Action  of  liepU  I  ill.  47.* 

Tciiaiils,  in  conuiioii,  thi-refore,  should  not  join.— Rut  rop.irccnerB 
thoiild  join,  for  tlicy  make  hut  one  lioir  :  hirI  fc^r  the  same  reason,  so 
should  Joint  tenants  (a). 

Against  nliom. — Replevin  lies  against  him  \vho  takes  the  goods,  and 
also  at^.iinst  liim  w  ht»  cominut;ds  tlie  taking  ot  againj't  both  (A). 

So  it  iiis  against  him  who  takes  damage  feasant,  if  lie  detains  after 
amends  tendered  (r). 

lirpln'in  lies  for  iihttt. — Replevin  lies  for  wliatever  iscnpal)lcof  being 
distrained,  and  for  nothing  else  ;  for  the  action  is  the  remedy  of  the. 
party  whose  goods  are  distrained. 

Replevin,  therefore,  does  not  lie  of  things /<?rfr  naturce  ;  nor  of  deeds 
or  cliarters  ;  nor  of  money  ;  nor  of  leather  made  into  shoes  (ri). 

Hut  if  a  mare  in  foal,  a  cow  in  c.df,  ice.  be  distrained,  and  they 
happen  to  Firing  forth  their  young  whilst  they  are  in  custody  of  the  dis- 
trainer, a  replevin  lies  of  the  foal,  calf,  Ni.c.  (r). 

Keplevin  lies  of  a  ship  :  so,of  the  sails  of  a  ship  (/). 

But  no  replevin  lies  of  goods  taken  beyond  the  seas,  though  brought 
hither  by  the  ddcndant  afterwards. 

In  those  cases  in  which  replevin  docs  not  lie,  the  party  may  brin"-  an 
action  of  detinue  to  recover  the  deeds,  goods,  K-c.  in  specie  (§•). 

The  plaintiff  having  l)rou^ht  replevin  for  goods  levied  under  a  war- 
rant of  distress  for  an  assessment,  by  a  special  sessions  under  the  High- 
way Act,  13  Geo.  3.  chaj).  78.  sect.  47,  on  the  ground  of  tiie  premises 
for  which  he  was  assessed,  being  situated  without  the  townsiiip  wjiiili 
was  liable  to  repair  the  road  ;  the  Court  refused  to  set  aside  the  pro- 
ceedings (//). 

The  several  kinds  of  Rrphvin. — Replevin  may  be  made  cither  by  ori- 
ginal writ  of  replevin  at  common  law,  or  by  plaint  by  the  statute  of 
Marlbrid^e,  52  11.  3.  r.  21. 

Formerly,  when  the  party  distrained  upon  intended  to  dispute  i\\(\ 
right  of  the  distress,  he  ha^l  no  other  process  by  tlie  common  law  than 
by  a  writ  of  repleviti,  rrf}/rq-inri  facias,  which  issued  out  of  Cliancery, 
commanding  the  sherilf  to  deliver  the  distress  to  the  owner,  and  after, 
wards  to  do  justice  in  respect  of  the  matter  in  dispute  in  his  own  Coun- 
ty Court.  But  this  being  a  tedious  method  of  proceeding,  the  beasts? 
and  other  goods  were  long  detained  from  the  owner,  to  his  great  lo^^- 
and  dimage. 

The  statute  of  .IfiWir/V/i^^,  therefore,  directs,"  That  (without  suinii 
a  writ  out  of  the  Cliancery)  if  the  lieasts  of  any  person  lie  taken  and 
wrongfully  withhoMen,  the  sheritV,  after  complaint  made  to  him  there- 
of, may  deliver  them  without  let  or  gainsaying  of  hira  that  took  the 

(a)  Cro.  Eli7  S30.  Salk.  390.  Rul  N.  V.  t3  (b)  3  Riiil  43!.  I.  s 

tc)  K.  N.  B.  19  O.  (<<;  n:.c   Ab'.  t!'."Pcple»o,-   i.c  [r  1  («)  Ii>iJ. 

(/}  Ibid  ■  u;  I'- i'l  P  ^'  '■■■  Boo  <t  Pul.  K.  H  U*.r 


475  Of  the  Action  of  Replevin.        [Chap.  XVIIL 

beasts,  if  Ihey  were  taken  out  of  liberties ;  and  if  they  were  taken 
>vi{hin  lihcrtirs,  and  the  bailiffs  of  the  liberty  will  not  deliver  theni^ 
then  the  shcriir,  for  default  of  those  bailiffs,  shall  cause  them  to  be  de- 
livered." 

Also,  for  the  more  speedy  delivery  of  cattle  taken  by  way  of  distress, 
the  statute  of  the  first  of  Philip  and  Manj,  c.  12.  provides,  that  the 
slier  iff  shall  make,  at  least,  four  deputies  in  each  county,  dwelling  not 
above  twelve  miles  from  each  other,  for  the  sole  purpose  of  making  re- 
plevins,  under  a  penalty  of  bl.  for  every  month  such  deputies  shall  be 
omitted  to  be  provided. 

When  any  man's  goods,  therefore,  are  distrained  or  impounded,  he 
niav,  upon  application  for  the  purpose  to  one  of  these  deputies,  upon 
giving  pledges  to  return  the  distress  if  judgment  be  against  him,  have  a 
replevin,  hy  which  his  goods  will  be  restored  to  his  possession. 
'  But  when  an  Act  of  Parliament  orders  a  distress  and  sale  of  goods,  it 
is  in  the  nature  of  an  execution,  and  replevin  does  not  lie  [a). 

Out  of  what  Courts  Replevin  issues. — The  sheriff,  upon  plaint  made  to 
him  without  writ,  may  either  by  parol  or  precep*  command  his  bailiff  to 
deliver  the  goods,  that  is,  to  make  replevin  of  them  ;  and  by  the  words 
in  the  statute  of  Marlbridge,  "  after  complaint  made  to  him  thereof," 
lie  may  take  a  plaint,  out  of  the  County  Court,  and  make  replevin  pre- 
sently, which  he  is  to  enter  in  the  Court  (/>). 

By  this  statute,  the  sheriff  may  hold  plea  in  the  County  Court  on  re- 
plevin by  plaint,  whatever  may  be  the  value  of  the  subject  in  dispute,  al- 
though in  other  actions  he  shall  only  hold  plea  where  the  matter  is  under 
4Ds.  value  ;  and  the  plaint  may  be  taken  at  any  time  as  well  out  of,  as  in 
Court.  But  if  the  taking  be  in  right  of  the  Crown,  or  if  any  thing 
touching  the  freehold  come  in  question,  or  ancient  demesne  be  pleaded, 
or  if  the  distrainer  claim  property  in  the  goods,  and  on  a  writ  dc  pro* 
prictate  probanda,  they  be  found  to  be  his,  the  sheriff  can  proceed  no 
further,  but  must  return  the  proceedings  into  the  Court  of  K.  B.  or 
C.  P.  to  be  there,  if  thought  advisable,  finally  determined  (r). 

But  either  party  may,  by  the  writs  oipone,  and  recordari  facias,  re- 
move a  replevin  to  these  superior  courts :  the  plaintiff  at  his  election, 
the  defendant  upon  reasonable  cause.  It  is  therefore  usual  tocarry  it 
up,  in  the  first  instance,  to  Westminster  Hall  [d). 

The  writ  of  replevin  issues  out  of  the  Court  of  Chancery,  and  is  r&- 
lurnable  only  into  the  Court  of  King's  Bench,  Common  Pleas,  the 
court  of  the  Cinque  Ports,  and  the  County  Court  (<?). 

If  the  sheriff  makes  replevin  he  need  not  return  the  writ ;  but  if  he 
does,  he  ought  to  return  the  cause ;  and  if  he  do  not,  an  attachment 

(n)  Rac.  Abr.  tit.  "  neplevin,"  &c.  [C]  (h)  Bull.  N.  P.  52.  (c)  2  Bl.  Com.  M3^ 

id)  Co.  Lit.  U5.  b.  2  Cromp.  Pract.227.  (e)  2  Inst.  312. 


Srcl.   I.J  Of  Ihc  Action  of  lit //It  tun.  477 

lies  agawist  hini  to  tin-  coroners,  roninmn«linRllicm  lo  attach  thcBlK-riJr 
for  hlscontcinijt,  ami  in  the  interim  njiil;e  rt- i»lc\  in  (-/). 

Proceed ini^s  in  replevin  canrt>t  he  eurried  on  in  the  lliindrfd  ('..nit 
Baron,  or  any  other  court  claiming  a  jurisdiction  over  such  proceed- 
ings hy  prescription  ;  unless  perli.ips  hy  process  of  the  Court  alter  ii 
plaint  entered,     lint  it  lies  hy  plaint  in  Luiulun  (!>). 

If  the  distress  he  made  in  a  franchise  or  huiliwick,  the  sheriff  is  to 
direct  the  replevin  to  the  hailiil"  thereof  to  deliver  the  -oods  upon 
j>Ied- 'S,  and  if  he  make  no  answer,  L-r  return  tliat  he  w  ill  make  no  de- 
K\i;anee,  or  the  like,  then  the  siierill  may  inter  into  the  liherty,  anrl 
make  deliverance  ;  and  if  the  itistrets  betaken  without  the  lil)erty  and 
imp.junded  within  the  iilierty,  then  the  bheriff  may  enter  and  make  dc- 
hverujice,  and  need  not  first  mal;e  out  a  warrant  to  the  sheriii  of  the 
liberty  (r). 

But  if  a  nj:ui  were  to  presume  to  replevy  y;oods,  seized  iu  order  to  con- 
dcnniation,  it  woidd  l)e  a  eontemjjt  of  the  Court  of  Excnequer,  for 
wliich  an  attachment  v.ould  be  granted  ujstantly  (r/). 

Tlie  action  of  replevin  is  of  two  sorts :  1.  in  tiie  dciinct,  2.  in  the  de- 
iinuit.  \\  here  the  party  has  had  his  goods  re-delivered  to  him  by  the 
sherijf  upon  a  writ  of  replevin,  or  upon  a  plaint  levied  before  liim,  the 
action  is  in  the  dctinuit,  *'  wherefore  he  detained  the  goods,"  \c.  but 
where  the  shcriif  has  not  made  such  replevin,  I)ut  the  distrainer  still 
keeps  possession,  the  action  is  in  the  dvtinct,  "  w  herefore  he  detains  the 
gooils,"  \c. — The  advantage  that  tiie  plaintijfhas  in  bringing  an  action 
01  replevin  in  the  drtincl,  instead  of  an  action  of  trespass  dc  bonis  aspur- 
tutis,  is,  that  he  can  oblige  the  defendant  to  re-deliver  the  goods  to  liini 
immediately,  in  case,  upon  making  his  avowry,  they  appear  to  be  re- 
plevisable  :  butashenray  more  speedily  have  them  delivered  immedi- 
ately after  they  are  distrained  by  application  toilic  sheriff,  the  action  iti 
the  ditiiut  has  Hillen  into  disuse,  and  is  never  brought,  unless  the  dis- 
trainer has  eloined  [removed]  the  goods  so  that  the  shcriil  cannot  get  at 
them  to  make  replevin  ;  whereupon,  after  avowry  made,  tin  plaintilf 
may  pray  tliat  the  delendunt  gigc  deliveraiice  ;  or  he  may  act  as  men- 
tioned under  title  llir  nrit  of  IVUlu  rmun  which  vidcposUa  (<). 

The  nietiiod  of  proceeding  usually  adopted  now  is  l»y  pidint,  that 
by  writ  being  i^encrally  disused. 

The  sheriif  is  obliged  lo  grant  replevins  in  all  such  cAses  as  are  al- 
lowed of  by  law,  and  the  ollicer  who  takes  tlu  goods  by  virtue  of  a 
replevin,  issuing  for  wliat  cauie  soever,  is  not  liable  to  an  action  ol: 
trespass  ;  unless  the  parly  in  w  iiobc  possession  the  goods  were  claim 
property  therein  ;    aiid  iu  all  cases  of  misbehaviour  by  ilu-  sheriii"  or 

(n)  2  Sell.  Pract  ::u  'tJ  1  L«l   «».vm.  219.  S  MJ.  Bi>S.  M7    Pro    R    3. 

<<.!->  l.v».  U',  l»>  ('♦;.Vu-ir  -":.  ^f' :  .-••II   I'f 4..1.  i I ' 


478  Of  the  Aciion  of  Replevin,  [Chap.  XVIIT. 

other  officers  in  relation  to  replevins,  they  are  subject  to  the  control  of 
the  king's  superior  courts,  and  punishable  by  attachment  for  such 
Diisbehaviour  (a). 

■\A  here  a  tenant  has,  on  coming  into  possession  under  an  assignment, 
had  nolice  that  the  lease  was  held  under  any  particular  person  to  whom 
the  former  tenant  has  paid  rent,  the  title  of  this  person  cannot  be  con- 
tested in  an  action  of  replevin  (6). 

Of  the  Pledges. — The  sheriii',  when,  upon  complaint  made  to  him, 
he  makes  replevin  must  take  two  kinds  of  pledges  :  1st,  by  the  com- 
mon law,  that  the  party  replevying  will  pursue  his  action  against  the 
distrainer,  for  which  purpose  he  puts  mplegii  deproserjuendo,oT  pledges 
to  prosecute  at  common  law  ;  and  2dly,  by  stat.  13  E.  1.  c.  1.  that  if 
the  right  be  determined  against  him  he  will  return  the  distress  again  ; 
for  Avhich  purpose  he  is  bound  to  find  plegii  de  retorno  habendo^  or 
pledges  to  make  return,  if  it  be  so  adjudged  (c). 

The  pledges  taken  must  not  only  be  s'ufficient  in  estate,  viz.  capable 
to  answer  in  value,  but  likewise  sufficient  in  law  and  under  no  incapa- 
city ;  and  therefore  infants,  &c.  are  not  to  be  taken  as  pledges,  neither 
are  any  persons  politic  or  bodies  corporate.  But  the  sufficiency  of 
these  pledges  is  discretionary,  and  if  the  sheriif  returns  insufficient 
pledges,  he  shall  answer  for  the  price  of  the  goods  himself ;  for  insuffi- 
cient pledges  are  as  no  pledges. — The  pledges  when  taken  must  be  re- 
corded in  the  County  Court  {d). 

Upon  plaint  being  made,  and  pledges  found,  which  is  done  at  the 
sheriff's  office,  the  sheriff  or  one  of  his  deputies,  by  stat.  1  E.  2.  P. 
&.  M.  is  to  make  replevin  of  the  goods  or  cattle  distrained,  which  is 
done  by  granting  a  warrant  (e). 

There  is  no  particular  time  w  hen  the  replevin  must  be  made,  as  the 
distress  cannot  be  disposed  of,  but  must  be  only  kept  as  a  pledge. 

In  replevin,  a  bond  instead  of  pledges,  taken  by  a  sheriff  to  prose- 
cute the  action  with  effect  for  wrongfully  taking  the  plaintiff's  gelding, 
and  to  make  return  thereof  if  return  should  be  adjudged,  is  giood :  but 
he  cannot  take  gage  instead  of  pledges  (/). 

If  the  sheriff  neglect  to  take  a  replevin-bond,  the  party  injured  may 
have  his  action  against  him ;  but  it  is  not  a  contempt  of  Court  for  which 
they  will  grant  an  attachment  (§•). 

If  upon  such  bond  the  plaintiff  in  replevin  do  not  enter  his  plaint  in 
the  County  Court,  the  bond  will  be  forfeited  ;  so,  if  afterwards  he  do 
not  proceed  in  the  prosecution  ;  or  if  he  be  nonsuit,  or  has  a  verdict 
against  him  (h). 

But  if  the  plaintiff  in  replevin  enters  his  plaint,  and  afterwards  is 

Co)  Bac.  Abr.  tit.  "  Replevin."  Sic.  [C]  (6)  1  Esp.  R.  91.  (c)  Bac.  Abr.  «<  ant4. 

(d)  Co,  Lit.  U5.    2Inst.  3lO.  (e^2  Fell.  Pract.  2:C.  (f)  1  Li).  Kaym.  278. 

(f;2T.  R.  617.  (A}  Com.  iJig.  tit.  "  Replevin."  fD.J 


Sect.  I.]  Of  I  he  Action  of  Jktpltrin.  .17'.) 

rt'tr.iincd  by  injunction  out  of  Chimrrry  till  his  death,  ulicrchy  jiis 
[jjiant  abates,  the  bond  will  not  be  furfeilrd  (r/). 

The  bon<l  any  be  assigned,  if  the  plaintiil"  in  replevin  do  not  ap- 
pear at  the  County  Court  rirxt  after  Ki^'i".T  ^I'l"  bond  :  and  he  may  sue 
on  the  bond  as  assii^ncc  of  the  f-lieriif  in  the  siipcrinr  Courts,  tluuii^h 
the  re|)lcviu  be  not  removed  out  of  the  County  Court  (.0). 

Hut  tIiouu,h  if  tl»e  distress  be  not  for  rent,  the  boiul  is  not  assi^n-ildc, 
5'et  the  party  may  apply  to  the  shcriil'  for  t!ie  bond  -.wA  to  be  al  li!i'  rly 
to  sue  in  his  name. 


J  low  to  make  Replevin  where  Distress  is  for  Rent. 

If  tlic  tenant  means  to  rej  levy,  he  must,  within  five  days  after  no- 
tice of  tlie  distress,  take  willi  him  two  housekeepers,  living  in  the 
city  or  county  where  the  distress  was  made,  and  i^o  to  the  blieriil's 
olHce  of  such  city  or  county,  wliere  he  must  enter  into  a  bontl  with 
the  two  housekeepers,  as  sureties  in  double  the  value  of  the  goods 
distrained,  accordintj  to  stat.  11  G.  2.  upon  wliicli  the  sheri.f  will 
direct  a  precept  to  one  of  his  bailiJls,  and  the  possession  of  the 
goods  will  be  restored  to  the  tenant  to  abide  the  event  of  the  suit  in 
replevin  (c). 

It  lias  before  been  observed,  that  upon  ma'uiri.^:  replevin,  two  kinds 
of  securities  were  at  common  law  taken  by  tSo  t^heriH",  viz.  tlie  one  for 
prosecuting  the  suit ;  the  oth^T,  f.r  rctiirniii5  the  goods  if  a  return 
should  be  awarded.  The  first  were  merely  nominal  CJohn  Doc  and 
Richard  Jior^J  but  tlie  second  should  be  real  re»ponsible  persons. 
Shcriils  however  gradually  became  remiss  in  their  duty,  and  often 
neglected  taking  these  pledges  pro  niorno  hubirulo;  or,  if  any  were 
taken,  for  tlie  most  part  they  were  found  to  be  indigent  and  irrcspon* 
silile  people  (f/). 

The  stat.  Jl  (I.  2.  r.  10.  5.  23.  tlicrefore,  for  the  better  sccuriuc; 
the  paynunt  of  r^'uts  and  preventing  frauds  by  tenants,  enacts,  "  That 
to  prevent  vexatious  rei)!evins  of  distresses  taken  for  rr7J^  all  shrr>*"s  and 
other  ofiio(?rs  having  authority  to  grant  replevins,  njay  anJ  shall,  in 
every  replevin  of  a  distn  ss  for  rent,  take  in  their  own  nauTCs  from  the 
plaintiiland  two  responsible  persons  as  sureties,  a  bon;!  in  douide  the 
value  of  the  goods  distrained  (such  value  to  be  ascertained  by  the  oith 
of  one  or  more  credita!)lc  witness  or  witnesses  not  interestc*!  in  the 
goods  or  distress,  wli'cli  oath  the  person  granting  such  replevin  is 
hereby  authoriz-d  and  required  to  administer,)  and  conditioned  for  pro- 
secuting t!ic  suit  w  ith  cilect  and  without  delny.  an  I  for  duly  returning 

(a)  Com.  Diz.  lit."Rri.'«.;"  ••  iO  1  Cirt'.   .'.").  (t.  AT    R.'.SS. 

(t)  2  Sell.  Pract  260.  .1 


480  Of  the  Writs  in  Bepkvin.         [Chap.  XVIII. 

the  goods  and  chattels  distrained,  in  case  a  return  shall  be  awarded  be- 
fore any  deliverance  be  made  of  tlie  distress." 

For  the  further  protection  of  landlords  and  by  way  of  putting  the 
remedy  into  their  own  hands,  it  is  also  ordered  by  the  same  statute, 
"  That  such  sheriff  or  other  oHicer  as  aforesaid,  taking  any  such  l)ond, 
shall,  at  the  req'iest  and  costs  of  the  avowant,  or  person  making  conu- 
sance, assign  such  bond  to  the  avowant,  or  person  aforesaid,  by  indors- 
ing the  same,  and  attesting  it  under  his  hand  and  seal,  in  the  presence 
of  two  or  more  credible  witnesses ;  Mhich  may  be  done  without  any 
stamp,  provided  the  assignment  so  indorsed  l)e  duly  stamped  before 
any  action  be  brought  thereon  :  and  if  the  bond  so  taken  and  assigned 
he  forfeited,  the  avo^vant  or  the  person  making  connsaiice,  may  bring 
an  action,  and  recover  thereupon  in  his  own  name;  and  the  Court 
■where  such  action  shall  be  brought  may,  by  ti  rule  of  tlie  same  Court, 
give  such  relief  to  the  parties,  upon  such  bond,  as  jnay  be  agreeable  to 
justice  and  reason,  and  such  rule  shall  have  the  nature  and  eiiect  of  a 
dcfeazanc©  to  such  bond." 


Section  II.     Of  the  JVrils  in  Replevin. 

The  original  writ  in  replevin  issues  out  of  Chancery,  and  neither  that 
nor  the  alias  replevin  are  returnable,  but  are  only  in  the  nature  of  a 
jiistick'S  to  empower  tlie  sherili'  to  hold  the  plea  in  his  County  Court, 
where  a  day  is  given  to  the  parties.  But  the /j/j/r/e-s replevin  is  always 
with  this  clause,  "  or  shew  cause  before  us,"  and  is  a  returnable  pro- 
cess {a). 

Tl!e/;///r/f?5  replevin  supersedes  the  proceedings  of  tlie  sheriiT,  and  the 
proceedings  arc  upon  that,  and  not  upon  the  plaint  as  they  are  when 
that  is  removed  by  rccordari :  and  though  there  is  no  summons  in  the 
writ,  yet  it  gives  a  good  day  to  the  defendant  to  appear,  and  if  he  do 
not  appear,  ?l pojie  issues,  and  then  a  capias  {b). 

Process  of  outlawry  lies  upon  the  capias  in  withernam^  which  issues 
upon  the  sherilF  's  return  of  averia  elojigatn  upon  the pluries  ;  and  upon 
the  sheriff's  special  return  of  nuUn  bona  on  the  7iifhrrnam,  there  shall 
go  a  capias  against  the  person,  and  so  to  outlawry  (r). 

Capias  and  process  of  outlawry  in  replevin  were  given  by  stat.  25  E, 
3.  r.  17. 

Of  the  Withernam. — If  on  the  pluries  replevin  the  sheriff  return  that 
the  cattle  are  eloigned  to  places  unknown,  Si^c.  so.that  he  cannot  deliver 
them  to  the  plaintiff,  then  shall  issue  a  withernam  [from  the  Saxon 
words  reder,  other,  and  naam,  distress,  signifying  another  distress  in- 
fo) Bac,  Abr.  tit.  "  Replevin,"  S:c.  [E.J  (6)  Ibid.  (c)  Ibii 


Hid.  II.]  Of  l/ir   IFrils  in  R,  pit  tin.  i;;i 

str;i(l  of  the  former  whicli  \ra.s  cloitjncd,  tiat.  is,  roniovctl,]  dirfct'tl 
lo  the  shiMiil',  comm  iiulini^  Ijiiii  to  take  the  cattle  or  ^oods  of  the  de- 
fendant, uml  dotain  tliein  till  the  cittlc  or  t^oods  distrained  are  restor- 
ed to  the  plaint  ill";  and  if  upon  the  first  m  ifhernani  a  nihil  he  refunwd, 
then  an  rr'/<j5  an  I /'/'/r/' ?  vplcvin  pliali  iv-ne,  and  *-,,  f,,  n  '"/'''/ v  and 
cxiq-mt  (^{i"). 

The  Mril  of  withernam  onqht  to  rehearse  the  cause  which  tlie  slier- 
iff  return^',  for  which  he  cirinot  replevy  the  cattle  or  coods;  so  thf\t  it 
dors  not  lie  upon  a  bare sni;i:;esl ion  tint  the  beasts  arc  eloi:;ned,  fi<: — 
If  upon  the  wilhcrnini,  tin*  cattle  are  restored  to  the  party  who  cloiLjn- 
ed  them,  yet  he  shdl  pay  a  fine  for  his  contempt  (A). 

Tiie  withernam  is  but  mesne  process,  ami  cannul  Ix;  an  execution, 
bccanse  it  is  granted  before  jud^iu'iit  (r). 

Cattle  taken  in  withernam  may  be  worked, or  if  cows,  may  be  milk- 
ed ;  for  the  party  has  them  in  lien  of  his  own  :  and  as  the  party  is  to 
li  ive  the  use  of  the  cattle,  he  is  not  to  have  any  allowance  or  payment 
for  the  expenses  he  has  been  at  in  maintaining  them  (d). 

In  scire  facias  against  an  executor  on  a  judgment  dc  rrtorno  Imbcndo 
against  his  testator  for  a  cow,  but  which  was  not  ex-culcd,  it  ua":  held 
that  the  plaintiif  should  have  ex<cution,  for  tiic  defendant  coidtl  not 
1)C  prejudiced  ;  inasmuch  as,  if  the  siieriflP  return  rivcrin  ehjic'-ain,hti 
siiall  not  have  a  withcrnani  but  of  the  goods  of  the  testator  ;  or  if  there 
are  no  goods  of  the  testator,  the  sheriji' can  take  nothing,  I)ut  shall 
TvUiTW  7ii/llfi  bona,  and  then  the  plaintiif  liath  his  ordinary  way  to 
change  the  defendant,  if  he  hath  made  a  dcvaslavit  ;  and  it  wa*;  ad- 
juil^eil  f)r  the  plaint  i.i(f  ). 

If  upon  an  cionqifta  returned,  tlic  defendant's  cattle  arc  taken  in  wi- 
thernam, yet  upon  the  defendant's  appearance,  and  ph-ading  non  crpit^ 
or  claiming  property,  the  defendant  shall  have  Iiis  cat  lie  again,  and  if 
they  are  eloigned,  a  withernam  against  the  plaintiii":  for  if  the  pro- 
perty or  taking  be  in  qaestion,  there  is  no  reason  that  the  plaiutiil' 
should  have  the  defendant's  cattle. — Both  the  pUiintill'  and  defend- 
ant, indeed,  may,  it  seems,  have  a  w  ithernam  (  /"). 

Of  nri(  of  srcond  ddiocranrc. — At  common  law,  if  the  plaintifT  had 
Tieen  nonsuited  either  before  or  after  verdict,  the  defendant  who  dis- 
trained shoulil  have  had  return,  but  not  irreplevisable;  [this  signifies, 
that  ought  not  to  be  replevied,  or  set  at  large  upon  sureties  ;]  so  that 
the  plaint  iiT  after  nonsuit  might  have  had  as  many  replevins  as  he  chose. 
To  remedy  which  evil  the  slat,  ll'rstm.  '2.  (1.3  I'.d.  Isl.  1.  r.  2.)  to- 
strains  the  plainti.Tfrom  any  more  replevins  after  nonsuit,  but  gives  a 
writ  of  second  deliverance  :  and  if  in  such  writ  the  plaintill'  be  non- 

(a)  B%c.  AhT.tttnntt.IRi]  r''nri<l  . '  lUo*  (rf)  IMd. 

(fli  I'lid  (/    IM't 


482  Of  the   Writs  in  Replevin.     .     [Chap.  X VIII. 

suited,  or  if  the  plea  be  discontinued,  or  the  writ  abate,  or  if  he  prevail 
not  in  his  suit,  return  irreplevisable  shall  be  granted  (<-/). 

If  defendant  in  replevin  has  return  awarded  upon  nonsuit  of  the 
plaintiii",  upon  which  he  sues  a  writ  de  ret.  hab.^  and  the  sheriff  returns 
rtveria  e/ongatnperf/uerentew,  und  upon  this  a  withernam  is  awarded, 
and  upon  the  withernam,  the  defendant  has  tola  catalla  to  him  deliver- 
ed of  the  goods  of  the  plaintiiT,  and  thereupon  the  plaint  iii"  sues  a  se- 
cond deliverance  :  he  shall  sue  it  for  the  first  distress  taken,  and  not 
for  the  withernam,  as  appears  by  the  nature  and  form  of  the  writ  of 
second  deliverance  {b"). 

liet'orno habendo  awarded  to  the  sheriff,  after  a  writ  of  second  de- 
liverance prayed  by  the  plaintiff,  is  a  supersedeas  to  the  ret.  hab.  and 

closes  the  sheriff's  hand  from  making  any  return  thereon If  the 

sheriff  will  not  execute  the  writ  of  second  deliverance,  the  party  has  his 
remedyagainsthim  (c). 

This  stat.  of  U'eslm.  2.  gives  the  writ  of  second  deliverance  out  of 
the  same  Court  whence  the  first  replevin  was  granted,  and  a  man  can- 
not have  it  elsewhere  :  for  if  he  could,  then  he  might  vary  from  the 
place  limited,  as  to  this,  by  the  statute.  But  though  the  writ  cannot 
vary  from  the  first  in  year,  day,  place,  or  number  of  beasts,  yet  if  the 
first  writ  was  of  a  heifer,  the  second  may  be  of  a  cow,  as  by  presump- 
tion it  may  in  that  distance  of  lime  grow  to  sucli. 

Where  the  defendant  had  avowed,  and  plaintiff'  being  nonsuited 
brought  this  writ,  it  was  held  that  though  the  writ  be  a  supersedeas  to 
the  ret.  hab.  it  is  not  so  to  the  writ  of  enquiry  of  damages ;  for  these 
damages  are  not  for  the  thing  avowed  for,  but  are  given  by  the  stat. 
21  //.  8.  f.  19.  as  a  compensation  for  the  expense  and  trouble  the  avow- 
ant has  been  at. 

In  error  on  a  second  deliverance,  tlie  writ  must  be  certified  :  and  if 
it  vary  in  substance  from  the  declaration  in  replevin  it  shall  be 
abated  (r/). 

Upon  a  nonsuit  either  before  or  after  evidence,  this  writ  will  lie,  be- 
cause there  is  no  determination  of  the  matter,  and  there  a  writ  of  se- 
cond deliverance  lies  to  bring  the  matter  in  question  {e). 

But  no  second  deliverance  lies  after  a  judgment  upon  a  demurrer,  or 
after  verdict,  or  confession  of  the  avowry  ;  but  in  all  these  cases,  judg- 
ment must  be  entered  with  a  return  ii  replevisable ;  for  in  the  case  of  a 
demurrer  and  verdict,  the  matter  is  determined  liy  the  law,  and  in  that 
of  a  confession,  it  is  determined  by  the  confession  of  the  party  (/). 

Note.  In  an  avowry  for  rent,  the  second  deliverance  is  taken  away 
by  stat.  17  Car.  2.  c.  7. 

{a)  Bac.  Abr  ut.  ante.  [E  3]  (b)  Iliid.  (e)  Ibid.  (ef/lbid. 

(t)  Ibid.  (/;   Ibid. 


Sect.  H.]  Oj  tfit    Writs  in   litpUiin.  \t:\ 

Yt\  if  tlie  plaintiff  in  replevin  be  nonsuited  for  want  of  delivering  a 
dcclaralioii,  ^^llich  liappen(tl  lhroiii:li  any  cause  that  uould  liave  en- 
titled him  to  a  writ  of  second  deliverance,  as  iicknefs  of  the  person 
employed,  Kc.  the  Court  will  order  tiic  defentlaiit  to  accept  of  a  de- 
claration on  paynunt  of  costs ;  else  the  plainliiV  \\«Mild  Me  reinedileff;, 
the  writ  of  Mcontl  deliverance  Ijcinij  taken  away  hy  the  17lh  C.  2. 

Of  nrit  drpri'prictate  prohandn.—-'V\\c  urit  dc  propritntr  prolianda 
issues  out  of  Cliancery,  or  K.  B.  or  C.  P.  A\  hen  it  issues  out  of 
Chancery,  it  is  an  original,  and  goes  upon  the  slierifl's  return  to  the 
oliiti  replevin  ;  when  out  of  either  of  the  other  Courts,  it  is  judicial 
and  granted  on  the  return  of  the  plurics,  fjr  the  plurics  is  return- 
able only  there,  the  original  and  edicts  giving  no  day,  but  btinij  merely 
vicontiel  (d). 

If  the  dclendant  in  replevin  claim  property,  the  sherifl"  cannot  pro- 
ceed, for  property  must  be  tried  by  writ.  In  this  case,  therefore,  the 
plaintill  may  have  the  ^\rit  dc  propriet  ate  probanda  to  the  sheriff,  who  is 
to  give  notice  to  the  parties  of  tJie  time  and  place  of  exccutiui;  it,  for 
it  is  an  inquest  of  ofiice.  If  it  be  found  for  the  i)!aintiil",  the  sheriff 
is  to  make  deliverance  ;  if  for  tlie  defendant,  tl»en  he  is  to  proceed  no 
further,  but  bein;^  an  inquest  of  ollice,  the  plaint  ilf  may  notwith- 
standini^  liavc  a  replevin  to  the  fheriiV,  and  if  he  return  the  claim  of 
property,  yet  it  shall  proceed  in  C.  P.  where  the  property  shall  be  j)ut 
in  issue  and  finally  tried.— None  but  he  who  is  party  to  the  replevin 
shall  have  the  writ  d(  prop.  prob. 

The  sheriff  is  to  return  the  claim  of  property  on  the  plurics,  lufore 
■which  time  the  writ  dc  prop.  prob.  does  not  issue,  for  it  recites  the 
plurics  (b). 

If  the  defendant  in  replevin  claim  projierty,  the  plaintiff  may  ];avc 
the  writ  dr  prop. prob.  without  conlinuance  of  the  replevin,  though  it 
be  two  or  three  years  after  ;  for  by  the  claim  of  property  the  first  is 
determined  (r). 

If  the  plaintilFhas  property  and  omits  to  claim  it  before  the  sheriff, 
he  may  notwithstanding  plead  property  in  himself,  or  in  a  stranger, 
cither  in  abatement  or  bar. 

If  it  be  notified  to  liim  that  comes  in  aid  of  the  sherLff  or  lut  cff.cer, 
that  claim  of  property  is  made,  he  at  his  peril  ought  to  desist,  for  if 
he  take  them  away,  he  will  be  a  trespasser  ab  initio  (d). 

A  man  cannot  claim  property  in  the  County  Court  iiy  his  bailiff  or 
servant,  for  if  the  claim  be  false  a  fine  will  be  in)poscd  for  t!:c  con- 
tempt;  but  in  K.  H.  one  may  make  conusance  and  claim  property  by 
a  bailiff,  fur  thvre  the  Ijaiiiii'  ib  not  liable  to  a  fine  ^f ). 

(o;  Dtc   A'jtutarJc    [ii  i]  '  !■    l^il-  u/IUi  Ci/j  lliid. 

<*)  Ibid. 


484  Of  the   IVrits  in  Replevin.     [Chap.  XV III. 

Of  writ  dc  rcloruo  habendo — A  replevin  being  granterl,  if  tlie  person 
who  takes  the  distress  "  avows  ;"  or  if  his  baiiia  make  "  conusance," 
and  prove  the  distress  to  be  lawfully  taken  ;  or  if  upon  removal  of  the 
phiint  into  the  Courts  above,  the  plaintiff  whose  cattle  were  replevied, 
make  default  or  do  not  declare,  or  prosecute  his  action,  and  thereby 
becomes  nonsuited  ;  or  if  a  verdict  l)e  i^iven  against  him  ;  in  any  of 
these  cases,  the  party  distraining,  that  is,  the  defendant  in  replevin, 
shall  have  a  writ  de  rctorno  habendo  ;  ^\hich  being  a  judicial  writ,  and 
not  a  returnable  process,  if  on  the  pbiries  the  sheriii  return  that  the 
cattle,  goods  or  chattels  are  eloigned,  he  shall  have  a  scire  facias 
against  the  pledges  according  to  the  stat.  of  Wcslm.  2.  and  if  they 
have  nothing,  then  he  shall  have  a  7vilhernam  against  the  plaintiii's 
own  cattle  (a)- 

A  baiiiii'  who  makes  conusance  may  have  judgment  of  a  return,  and 
consequently,  a  writ  de  ret.  hab.  grounded  on  such  judgment  (/-»). 

Of  lietarns  irreplevisable. — Ueturn  irreplevisable  is  a  judicial  writ 
directed  to  the  sheriff  for  the  final  restituji'in  of  the  cattle  unjustly  ta- 
ken by  another,  and  so  lound  by  verdict  or  after  nonsuit  in  a  second 
deliverance  (r). 

If  the  pica  be  to  the  writ,  or  any  other  plea  be  tried  by  a  verdict,  or 
judged  upon  demurrer,  return  irreplevisable  shall  be  awarded,  and  no 
new  replevin  shall  be  granted,  nor  any  second  deliverance  by  stat. 
IVestm.  2.  s.  2.  but  only  upon  a  nonsuit.— But  if  upon  issue  joined  the 
plaintijrT  does  not  appear  on  the  trial,  being  called  for  that  .purpose, 
return  irreplevisalile  shall  not  be  awarded,  but  the  party  may  have  a 
writ  of  second  deliverance. 

If  a  man  has  return  irreplevisable,  and  a  beast  dies  in  the  pound, 
he  may  distrain  anew  :  so,  if  the  beast  dies  before  judgment  {d). 

If  a  return  irreplevisable  be  awarded,  the  owner  of  the  cattle  may 
oiler  the  arrearages ;  and  if  the  defendant  refuse  to  deliver  the  dis- 
tress, it  being  only  in  the  nature  of  a  pledge,  the  plaintiii'  may  have 
detinue. 

Such  processes  hoiv  to  be  executed. — By  the  stat.  Westm.  2.  if  the  par- 
ty who  distrains,  conveys  the  distress  into  any  house,  park,  castle,  or 
other  placeof  strength,  and  refuses  to  suffer  them  to  be  replevied,  the 
sheriff  may  take  the  posse  comitatus,  and  on  request,  and  refusal,  may 
break  oj)en  such  house,  castle,  &c.  and  make  deliverance.  If  the 
sheriff  return  that  the  beasts  are  inclosed  in  a  park  among  savages, 
&.C.  or  (juod  Dinndavi  hallivo  libcrtatis,  Sec  f/ui  nullum  dedit  mihi  rcspon- 
sum,  or  that  the  bailiff  will  not  make  deliverance  of  the  cattle,  these 
are  not  good  returns  ;  for  he  ought  to  enter  the  franchise  and  make 
deliverance  (c). 

<-a;Bac.  Ahr.  ulanJi.  [E.  5.J  (6)  Ibid.  (»)  Ibid.  [E.6.)  f«^;  Ibid 

(e)  mid.  [K.  l.i 


Sect.   II.]  Of  flu    Dirlavntlon.  1«5 

Ifn  in  111  '■IK-  a  replevin  in  tlic  County  Court  without  writ,  and  tliR 
>),ii.i.{"  reliiin  to  tlic  sli'ri.r,  thit  lie  c.uin.)t  liiivc  view  of  lli",  catlic  to 
(li'iivtr  t  i'ln,  the  sherii"  oii;;!it  l)y  inf|iest  of  the  olfice  to  inquire  of 
the  truth  thereof,  am!  if  it  l)c  fouiKl  by  a  jury  that  thd  cattle  were 
eloi^M'd,  K'c.  the  she  rill' may  award  a  withernam  to  take  the  cleft  nd- 
ant'srnttl":  if  he  will  not  sodo,  the  plaintiff  «;hall  have  a  writ  out  of 
Chanrery  directed  to  the  shcriif  relicarsini;  the  whole  matter,  coni- 
Hian-iinL,'  him  to  award  a  withernam,  he.  and  he  niay  have  an  rf//<r.v, 
and  aftf-ra  plun'cs,  und  an  attichnunl  against  tht  sheriff,  if  he  w  ill 
not  execute  I  lie  kind's  commatid  (c/). 

If  the  Fheri.f  return  f/uod  nvrr'hi  <  lonc^atn  sunt  nd  lorn  inroqiuln,  it  is 
a  ?oo(l  return,  and  the  party  must  pursue  his  writ  of  withernam  ;  hut 
if  the  sheriii"  return  ai'triathnrrataad  toca  ituo'^niln  infra  comitntum 
7nrum,  he  shall  he  amerced,  for  the  law  intends  that  he  may  have  no- 
tice in  his  county  (/>). 

i^iod  avrriu  mortua  sunt  is  a  good  return:  so,  qt/nd  nitHus  vrnil  ex 
parte  (picvrfntis  ad  dnnousiranda  avcria  ;  but  it  seems  the  sherilV  is  not 
ol)li.;ed  to  require  tliis  {< ). 

If  the  sht-riff  ronie  to  take  replevin  of  beast?  impounfled  in  another 
miu's  soil  ;  if  tiic  place  be  inclosed  and  have  a  gate  op<'n  to  the  in- 
el')sure,  he  cannot  break  the  inclosure  and  enter  thereby,  where  he  may 
enter  by  the  open  o^ate  :  but  if  the  owner  hinder  him,  so  that  he  can- 
not qo  by  the  ojK-n  i^^atc  for  fear  of  death,  he  may  break  the  inclosure 
and  fn<er  there  (J). 

If  the  sheriif  be  shewn  a  stran:^cr's  goods  and  he  take  them,  trespass 
lies  at^ainst  him,  else  the  stranger  could  have  no  remedy.  Hut  it 
ieems  to  !iavc  been  held,  that  the  action  lies  more  properly  against  the 
person  who  shews  the  ffoods  (<). 

The  sherilF  is  to  return,  that  the  cattle  are  cloiirned,  or  that  no  per- 
son came  to  shew,  i*tc.  or  a  delivery:  but  he  cannot  return  that  the 
defendant  non  rrpit  the  cattle,  because  it  is  supposed  in  the  writ,  and 
is  the  ground  of  it,  which  the  sheriJl' cannot  falsify  (/). 

Of  I  he  Diclaration. 

Althoiigli  it  has  l)een  liolden  by  some,  that  the  count  of  drclarrdion 
in  rei)levin  siiould  be  certain  and  particular  in  seltini;  forth  the 
nuniljcr,  kinds,  and  qualities  of  the  thi.'i's  distrained,  for  that  other- 
wise the  shcriif  cannot  teil  hosv  to  m  i'le  deliverance  of  the  same; 
yet 

It  seems  now  to  be  settled,  tint  a  declaration  in  replevin  being  cer- 
tain to  a  general  intc.it  is  sullicient ;  especially  if  it  be  after  vcuiict  (if). 

(a)  Bac.  Abr.  u/n>i.'r   [E   7]  fi!   Ibid.  {e)  \\M.  i.d)  V  : .  H'i'l- 

l.*")   IbiJ.  (If,.  C»C.  Alir.  tit.  ••  neplnrio,"  iP    '  i»  1 

C.3 


486  Of  the  Pleas.  [Chap.  XVIII. 

In  his  count  the  plaintiff  must  alledge  the  talsing  to  be  at  a  certain 
place,  or  (according  to  the  precedents)  in  quodam  loco  roccri',  that  the 
defendant  may  have  notice  as  to  what  he  is  to  answer,  and  make  his 
tille:  therefore  the  alledging  the  taking  opnd  Dale,  or  such  a  vili,  is 
too  general  and  uncertain  (a). 

In  replevin  both  the  vill  and  place  are  traversable. 

\VJiere  a  defendant  takes  cattle  wrongfully  at  first,  the  -wrong  is  con- 
tinued to  any  place  where  he  had  them  in  custody,  so  that  a  place  dif- 
fer from  that  w  here  they  were  orignally  taken  is  well  laid  in  the  decla- 
ration, if  defendant  had  them  in  custody  at  such  other  place  {b). 

A  man  may  count  of  several  takings,  part  at  one  day  and  i)lace,  and 
part  at  another  day  and  place,  for  he  need,  not  shew  hor*-  many  he  took 
in  one  vill,  and  how  many  in  another  (r). 

Where  the  defendant  counted  of  four  oxen  taken  at  divers  times  and 
places,  and  that  delivery  was  made  of  two,  'lut  the  other  two  were 
withheld  to  his  damage  li)s.  this  was  held  sufficient  without  any  sever- 
ance as  to  the  damages  (d). 

The  count,  as  in  other  actions,  must  agree  vvith  the  writ,  so  that  if 
the  w  rit  be  de  averiis,  and  the  count  de  averiis  Sr  catnllis,  this  is  ill. 
In  replevin  the  writ  was  in  the  detintt,  and  the  count  in  the  detinuit^ 
and  this  was  thought  to  be  a  material  variance;  but  the  parties  agreed 
to  amend  (e). 

Of  the  Pleas. 

Pleas  in  replevin  are  generally  of  four  kinds,  viz.  either  1st,  pleas  in 
fear ;  2dly,  in  justification  ;  3dly,  by  way  of  conusance  ;  4thly,  by  way 
of  avowry. — The  defendant  may  either  justify  or  avow  at  his  elec- 
tion ;  but  if  he  justifies,  he  cannot  have  a  return  (/). 

The  general  issue  in  replevin  is  non  ccpit ;  and  one  of  several  de- 
fendants may  plead  7ion  cepit  {g). 

If  the  defendant  claim  property  in  himself,  or  a  stranger  above,  as 
he  may  do  ;  though  it  ought  to  have  been  before  the  sheriff,  this  doe» 
not  amount  to  the  general  issue,  but  may  be  pleaded  in  bar  or  abate- 
ment, and  if  the  plaintiff  demur,  the  defendant  shall  have  a  return 
without  avowing  ;  for  it  appears  that  the  beasts  are  not  the  plaintiff's. 
But  on  the  issue  non  cepit,  property  cannot  be  given  in  evidence,  for 
that  were  contrary  to  it  (//). 

If  the  defendant  make  conusance  as  bailiff  to  A.  the  plaintiff  cannot 
traverse  that  he  is  his  bailiff';  for  it  is  a  matter  of  which  by  no  intend- 

(a)  r,ac.  Abr.  tit.  "  neplevin,"  kc.  fH.]  (6)  Il.id.  (c)  Ibid.  (d)  Ibid. 

(«j  Ibid.  (/;  Baj.  Abr.  «£  ante.  [I.]  (y }  Ibid.  (h)  Ibid, 


Sect.  11.]  Of  nmorinu;  the  Suit,  S,'i\  187 

ITient  he  can  hive  kiiowlrd^p.— Mat,  if  in  har  of  (lir  .avowry  llic  pl.iin- 
tiii"  pleads  tliut  another  had  inadf  coimsaiicc  a?--  Iiailiil"  to  .4.  for  the 
same  cause  an< I  was  barred,  lie  i\eci\  not  shew  that  it  was  uith  the 
privity  of  .7.  for  it  shall  he  intended  :  and  if  in^tnith  it  wuh  without, 
the  defenilant  may  traverse  hit>  heing  ever  his  hailili  (f/). 

Jn  a  replevin  against  the  master  and  haHitf  or  servant,  if  the  hailiiT 
makes  conusance  as  bailiii,  and  the  master  pleads  that  he  did  not  take, 
the  servant  shall  not  have  any  rdurji  upon  his  conusance,  for  hy  the 
master's  plea  his  conusance  is  chanm<l  into  a  justification  (A). 

In  replevin  of  hcasts  taken  at  JJ.  tlie  defendant  pleads  in  abatement 
that  they  were  taken  at  another  place  ahsqut;  hoc  that  they  were  taken 
at  i^.  i»nd  pro  retorno  hahcmlo  avows  for  rent  on  a  Ica.-c  for  years,  N.c. 
the  plaintiil"  replies  and  traverses  the  lease,  Src.  this  is  ill ;  for  thoush 
the  defenilant,  when  he  pleads  in  a!)atcnient,  must  also  avow  to  have  a 
rctiu"n,  yet  the  plaiutilT  cannot  answer  to  it,  hut  must  take  issue  on  the 
other  matter  (r ). 

rriscl  in  auter  lieu,  is  only  matter  in  abatement,  and  the  plain- 
tiil" may  have  a  new  writ  without  being  put  to  his  second  deli- 
verance ((.'). 

Of  removing  the  Suit  from  the  Couiiti/  Court,  ivherein  of  the 
Re.  fii.  lo.  Also  of  subsequent  Prveecdiiigs,  and  conq)elling 
the  Farljj  to  proceed. 

The  suit  remains  before  the  sheriil',  ^r.  though  the  goo<ls  and  chat- 
tels, Wv.  distrained  above  the  value  of  Ws.  ;  for  the  replevin  alias,  und 
plurirs, lire  all  vicontici  \vrit^:,and  tlie  suit  may  beileterniine!  in  such 
inferior  Court  :  but  the  suit  may  I>e  removed  by  either  oi"  the  pailies 
into  the  Courts  of  K.  B.  or  C.  l\  to  be  there  determined,  and  that 
without  any  cause  shewn  {'). 

The  method  of  removing  it  depends  on  the  manner  in  which  tlic  suit 
was  commenced  below. — If  replevin  be  in  the  County  Court  by  writ, 
it  must  be  removed  into  K.  B.  or  C.  P.  by  poncil' by  plaint,  by  writ  of 
rerorduri  furies  loquelam,  (called  for  brevity  a  rcfulo.).  If  rei)!eviu  is  in 
a  Court  of  RecoinJ,  that  may  hold  plea  in  replevin,  it  njust  l-e  removed 
by  certiorari,  and  not  in  any  other  manner  ;  for  a  rcfulo  <lovs  not  so  to 
such  Court,  because  there  the  suit  is  already  recorded.  If  the  j)lairit  is 
in  the  Court  of  another  lonl,  it  Uiay  be  removed  into  K.  iJ.  or  C.  1*.  by 
■recordari  to  the  sher id  command ing  him  quod  acccdas  ad  curiam  ct  in 
plena  curia  iW  rccorduri  facias,  ^u\  but  it  is  said  that  a  replevin  shall 
not  be  removed  out  of  any  which  i?   not  the  King's  Court,  uitliout 

ia    liir.    lUr  ut  mut(    [\l         l'>jih,i.        (c_;lhii  d    Jt>i(3.         (O  2  SeJI   Pr«rt.  I'lH 


488  Of  removing  the  Suit,  Sfc.  [Chap.  XVIII. 

cause,  either  by  the  plaintiff  or  defendant ;  for  the  prejudice  that  may 
thereby  come  to  the  lord  («). 

All  the  above  writs,  to  remove  the  suit  from  an  inferior  Court,  are 
in  their  nature  original  wi its  and  issue  out  of  Chancery.  The  snit, 
however,  is  most  commonly  commenced  in  the  County  Court  l)y  plaint : 
and  very  rarely  at  this  day  by  \\rit  (//). 

In  order  to  remove  it,  the  party  makes  out  apranpr  to  the  cnrsitor 
of  the  proper  county,  who  then  makes  out  the  writ,  which  must  be  car- 
ried to  the  under-shcriir  of  the  county,  Avho  returns  it  of  course.  If  tlte 
sheriil"  ret  urns  the  recordari,  tarde,  the  party  shall  have  an  alias,  <^c. 

By  the  recordari,  nothing  is  removed  but  the  plaint,  even  though 
the  issue  should  be  joined  below ;  and  the  plaint  may  be  reaiovcd, 
though  the  plaintiff  has  discontinued  there. 

The  plaint,  when  removed  into  K.  B.  is-filed  with  the  filazer  of  the 
county  :  so  also  when  removed  into  C.  P. 

Where  proceedings  are  removed  from  the  County  Court,  the  recordari 
facias  loquelam  (called  for  brevity's  sake  the  rrfalo)  being  returned  and 
appearance  nf  defendant  entered,  the  plaintiil"  must  declare  tie  novo,  nor 
need  any  notice  be  taken  of  the  proceedings  below.  To  the  declara- 
tion, the  defendant  may  plead  in  abatement  or  bar  ;  or  he  may  avow  in 
his  own  right,  or  make  conusance  in  right  of  another  as  his  bailiff  or 
may  justify  ;  and  the  parties  go  on  to  issue  or  demurrer  to  be  tried  or 
argued  in  the  usual  way  (r). 

But  as  both  parties  are  actors  in  replevin,  either  of  them  may  take 
down  the  record  to  trial ;  for  w])ich  reat^on  there  can  be  no  judgment  as 
in  case  of  a  non-suit  in  replevin  ;  and  if  tlie  defendant  gives  notice  of 
trial  and  does  not  proceed,  the  Court  will  give  cosis  against  him  (ri). 
But  though  an  avowant  is  an  actor,  he  cannot  have  a  rule  to  discon- 
tinue ;  for  it  is  the  plainliii  's  suit  notwithstanding  (^;). 

Of  coivpeliuigthc  Part  ij  to  proceed. — If  the  plaint  ifi  removes  tlie  plaint, 
he  should,  upon  the  return  of  the  rcjalo,  file  it  with  the  plaint,  At. 
■with  the  fiiazer  of  the  county,  and  search  for  the  defendant's  appearance  : 
if  the  defendant  has  not  appeared  on  or  before  the  appearance  day  of  the 
return  of  tlie  refalo,  the  plaintiif  should  serve  him  with  a  rule  to  appear, 
which  may  be  had  at  the  filazer's,  and,  upon  his  non-appearance  there- 
to, sue  out  aporie.  The  pone  is  also  got  at  the  filazer's  ;  a  suiimions  is 
made  out  thereon  at  the  sherifl's  office,  and  served  upon  the  defendant 
by  the  oflicer.  If  no  appearance  is  entered  on,  or  before,  the  appear- 
ance-day of  the  return,  get  the  slierilf  to  return  nihil  on  the  pone,  and 
sue  out  a  distringas,  which  may  likewise  be  at  the  filazer's,  and  proceed 
to  levy  thereon  :  tlie  issues  may  be  4/.  next  8/.  and  so  on  ;  if  the  defendant 

(a)  2  S(t\\.  Pract.  248.  {b)  Ibid.  249.  (c;  Ibid.  253.  (d)  Ibid, 

(e)  I  Str.  1 12. 


^cct.  IF.]  Of  Avonrirs.  .j;;9 

(li)cs  not  appear,  prnrcrd  w  itij  (Uslrifi:^(isr<:,  ad  infinitum.  If  he  does 
afttTNwirtls  appi-.ir,  iit-  imi>t  pay  tlu;  tohts  of  the  distrinrjases.  '1  iicn 
(us  before  observed)  declare  dc  nuvo,  not  imticiiij;  llie  |>rocccdin^n  in 
the  Comt  below.  —  Kiiles  may  l)e  afln  wards  i^iven  to  compel  the  de- 
iemlunt  to  avow,  ami  so  on  as  in  coinuioii  actions  (a). 

But  if  t!ie  defrndant  removes  it,  he  must  iile  tiie  rcfdlo  and  return 
thereto  with  the  filacer;  ami  havinj^  entered  an  appearance,  he  must 
give  a  rule  for  the  pl.iiutiil'  to  declare;  and  for  want  of  di-elaratiou, 
when  the  rule  is  out,  he  may  bi^n  a  /ion-pros,  for  not  dcclaruijj,  and  im- 
mediately sue  out  a  writ  dc  rctorno  kubindu  {It). 

If  the  rrfalo  is  not  li'ed  by  the  defeiiilant,  on  or  before  the  nppcar- 
anci-day  of  the  return  of  it,  notice  nuist  l)e  i^ivcii  to  the  pluujliu  of 
the  Gling  llicn.of  by  a  demand  in  writing  being  madeof  the  declaration, 
before  non-pros,  can  be  signed  ;  but  if  filed  on  the  appearance-day  of 
the  return,  suth  demand  is  not  necessary  (r). 

If  the  plaintilf  has  removed  the  cause,  and  does  not  proceed  ther'"in, 
or  if  the  defendant  has  removed  it,  and  after  having  served  the  plaint i if 
^^ilh  a  rule  to  declare,  and  demanded  a  declaration,  the  plainti.;  does 
not  deA;lare  or  proceed  tlierein,  t  he  defendant  may  sign  a  non-pros,  and 
judgtuenl  pro  ret.  hub.  and  then  sue  out  a  writ^jro  ret.  Iiab.  which  he 
may  obtain  of  the  hiazer  (6'). 

If  the  defendant  has  taken  out  the  rcfalo,  and  does  not  get  it  return- 
ed, and  filed  within  two  terms,  the  piaintifl"  should  appiy  to  the  fiiazer 
for  a  certificate,  that  the  same  is  not  returned  and  filed  ;  wliich  certifi- 
cate is  a  suiiicient  warrant  for  the  ci^sitor  to  make  out  a  writ  ofprofc- 
den  Jo,  which  remands  the  cau^c  to  the  County  Court  to  be  there  deter- 
mined (I  y 

If  the  rtfalo  is  not  returned,  so  as  to  enable  the  party  to  get  It  filed, 
the  sheriif  must  be  r;ded  to  return  it  (/). 

The  Court  will  not  stay  proceedings  in  an  action  of  replevin,  unless 
upon  payment  of  tlie  rent  in  arrear,  together  with  all  costs,  though  the 
arrears  were  tendcreil  before  witii  costs  iij)  to  that  time  (7-). 

\\here  the  avowry  is  |ur  damage  Icasant,  the  proceedings  cannot  be 
staid  ;  because  the  Cotirt,  in  such  cabc,  have  no  rule  to  guide  them  in 
ascertaiuing  the  damages  (/(). 

Of  Aiojirics, 

An  avowry,  as  has  born  before  observed,  is  the  scttimx  forth,  as  in 
a  declaration,' the  nature  and  merits  of  the  defendant's  cuse,  and 
the  shewing  fhat  the  distress  taken  by  him  wa^  lawful,  wiiicii  must 

(a)  2  Sell.  Pract.  250.  (hW^H  <e^  Piid  (d)  U.id.  251.  (e^  Ihid. 

(/)  Ibid.  (g)      fulL  ii  Bos.  333.    I  'i'ttM's  Tract  4b9.  (A)  Ibid. 


490  Of  Avowries.  [Chap.  XVIII. 

be  done  with  such  sufficient  authority  as  will  entitle  him  to  retorno  ha- 
lendo. 

A  distinction  is  to  be  observed  between  an  avowry  and  a  justification. 
An  avowry  aiways  goes  for  a  return,  and  therefore  shews  a  right  sub- 
sisting at  the  time  of  the  avowry,  as  made  for  rent,  for  example  ;  but 
a  plea  of  justification  does  not  always  go  for  a  return ;  as  where  the 
original  taking  was  lawful,  but  is  not  so  at  the  time  of  the  plea  plead- 
ed (n). 

In  one  respect,  however,  thpre  is  no  difference  between  an  avowry 
and  a  justification  ;  for,  generally  speaking,  whatever  is  set  forth  in 
either,  must  be  maintained. 

The  defendant  in  replevin,  to  entitle  himself  to  a  return  of  the  goods 
distrained,  must  make  his  avowry,  unless  it  be  in  a  case  in  vhich  he 
claims  property  ;  so  that  though  the  plaintiil's  m  rit  abates,  yet  the  de- 
fendant is  not  entitled  to  a  retorno  hahnidoy  unless  he  had  made  his 
avowry  (//). 

The  avowant  is  in  the  nature  of  a  plaintiiT,  as  appears,  1st.  from  his 
being  called  an  "  actor,"  wnich  is  a  term  in  the  civil  law,  signifying 
plaintiff;  2dly.  from  his  being  entilkd  to  have  judgment  de  retorno 
habendOyWad  damages  as  plaintiff;  and  3dly,  ircji;  tnis,  that  the  plain- 
tiff'may  plead  in  ai?ateni-.;nt  of  Ihe  av  •wry,  snd,  consequently,  such 
avowry  must  be  in  tue  ndi<;re  of  on  action  {<). 

An  avowry,  thereiore,  is  in  the  natnie  of  a  declaration,  and  it  suf- 
ficeth  if  it  be  good  to  a  coiTm.in  intent.  Biit  it  .should  shew  the  cer- 
tainty of  the  place,  day,  and  cattle,  to  entitle  the  avouanl  to  a  writ  of 

« 

enquiry  of  damages  ((/). 

The  avowant  being,  however,  in  the  nature  of  a  piair.tiii,  need  not 
aver  his  avowry  with  a  hoc  paratus  est  verijicare,  n.ore  than  any  other 
plaintiff'  need  aver  his  count,  and  being  an  acor,  lie  shall  not  have  a 
protection  cast  fur  him  more  than  any  other  plaintiff  ('). 

The  claim  of  right  to  distrain  must  be  made  oul  by  the  avowant 
against  the  plaintiff,  who  claims  property  in  il.c  distress  ;  and  the  de- 
fendant in  replevin  cannot  have  a  return  of  more  caltle  than  he  avows 
for  (/). 
*  With  respect  to  avowry  for  rent  an*ear,  if  the  clause  in  the  lease  is, 
"  That  if  the  rent  be  behind,  i)eing  demanded  at  another  place  beside 
the  land,  or  of  the  person  of  the  lessee,  tiiat  the  lessor  may  distrain  j" 
there,  if  the  lessor  distrain  without  any  demand,  it  is  j'lilawful  ;  for 
the  form  of  the  demand  is  different  from  what  the  law  requires,  and 
must  be  complied  with  (g-).--But  if  the  clause  is  "  That  if  tin  rnt  be 
behind,  being  lawfully  demanded,  that  then  he  may^duffrain  ;"  it  is 
f'  • 

(a)  1  Esp.  N.  P.  J53.  (6)  Pac.  Abr.  tit    "  Replevin,"  itc 

(c)  lb;j  fA.]  (d)  Ibid.  (e)  Bac.  Abr.  tit.  [A.]      •        (/:•  il^^i 


SecL  II.]  Of  Avonrks.  41U 

rio  more  than  tlic  Iiw    speaks,  and  therefore  the  lessor  may  distrain 
without  a  prcv  ioiisdcinarKl  ;  for  the  distress  is  of  itstif  a  drnnml  (.;). 

But  where  a  penalty  is  annexed  to  the  non-payment  of  th'j  r'-nt  and 
a  distress  is  given  for  it,  there  a  demand  nuist  be  lai<l.  As  \\here  the 
avowry  was  for  rent  and  a  tiotniiir  jnint\  and  no  demand  nileili;od,  tlic 
avowry  was  lield  to  he  clearly  ill  for  tlie  noininr  pa/u,  ior  want  <»f  a  de- 
mand, hut  gnod  for  the  rent ;  ami  Ihedcfendant  hat!  a  return  for  tliat  ('/). 

However,  w  lure  the  i-siie  was  on  a  co, lateral  matter,  I'iz.  uon  <ou- 
c/»Si7V,  though  noderamd  of  the  u'xninc  prnr:  wa'^  laid,  it  \»  as  he'd  to 
be  cured  by  a  verdict  (r). 

Attending  on  the  land  to  pay  the  rent  will  not  destroy  the  right  to 
distrain,  nn'ess  a  tender  payment  is  actually  made  (</). 

An  avowry  for  part  of  a  rent  or  |)eiially  is  bad,  unless  it  shew  how 
the  remainder  was  discl.art^cd  :  for  otherwise  there  may  be  another 
distress  and  avowry  for  the  re.siilue  (^). 

But  an  avowant  may  abate  his  t)wn  avowry  for  part  of  the  rent  dis- 
trained for  ;  but  not  after  judgment. 

So,  where  an  avowry  is  made  for  several  rents,  and  if  appears  that 
part  is  not  due,  yet  the  whole  avowry  sliall  not  abate  (/). 

In  replevin  A.  avowed  for  a  rent-charge,  due  anno  1CG(),  and  after- 
wards he  distrained  and  avowed  for  another  part  ofthe  same  rent-charge, 
which  became  due  before  the  said  year,  and  whicii  was  accainst  a  dif- 
ferent tenant ;  in  this  case  it  was  held  by  three  Juds^es  against  a  fourth, 
that  the  avowant  was  not  estopped  by  his  first  avowry  in  such  manner  as 
a  lessor  is  by  j;iving  an  acquittance  for  the  last  gale  of  rent,  but  that 
he  may,  at  his  pleasure,  avow  for  part  of  his  rent  at  one  time,  and  for 
part  at  another,  in  the  same  manner  as  the  lord  may  commainl  his  bai- 
liJito  distrain  for  so  much  rent,  and  afterwards  for  the  sum  due  be- 
■  fore  (r,^). 

In  avow  ry  for  rent,  and  so  many  hens  for  quit-rent,  the  avow  ant  had 
a  verdict  for  the  whole  ;  but  it  afterwards  appearing  upon  the  face  of 
avowry,  that  the  hens  were  not  due  at  the  time  of  the  distress,  the 
avowant  had  leave  to  release  his  damages  as  to  them,  and  take  judg- 
ment for  the  rent,  w  ith  his  costs  (/^). 

If  the  grantee  of  a  rcnt-char-^e  avows  upon  several  imder-tenants  for 
the  same  rent,  the  Court  will  upon  a  tenrler  |)Ieaded  by  the  under-ten- 
ants, make  an  order  that  the  payujcntof  tiie  rent  into  Cu-irt  in  one  ac- 
tion shall  serve  for  all  (/). 

A  man  cannot  proceed  for  damac^rs  upon  a  p!ea  of  tinder  afl»r  tak- 
ing th*"  money  out  of  Court.  Hut  on  a  pica  of  tender  to  an  v  ■-  '•'  f.r 
rent,  the  plaint  iff  need  not  bring  tho  money  into  Court  (/i). 

(rt)7Co2e.  b.  i^jHoU;  ';  I  r-d    llmj-Di  Tn 

(«;  Cro  C«r  104.  ij  J  \',^■•    Al.r  I,'.    "  K.;>-.  lu.'sr   [r.\ 

(?n''H.  5*1  Ibid  ;•)  1  L<1.  imym.  i?r 

iv^  n-iij.  «j?  r.jv  N  V  1,0 


492  Of  Avoivries.  [Chap.  XYIII. 

"Wliere  a  man  is  sole  seised  or  hath  title  to  an  entire  rent,  he  should 
distrain  for  it  ail  at  once. 

But  if  the  defendant  avow  for  more  than  is  due,  though  the  avowry 
is  for  tiiat  reason  t)ad,  yet  it  may  be  cured.  As  where  the  defendant 
avowed  for  rent  due  at  Mirliaehnns-,  an>!  the  distress  appeared  to  liavc 
been  made  on  the  2G\h.  of  September,  which  was  three  days  hefore 
Mich-trhnas,\\  was  held,  That  thoui^-h  theavowry  wag  bad  (for  the 
judgment  is  to  have  a  return  irreplevisable  till  all  the  rent  avow  e<i  for  is 
paid,  and  so  would  be  for  more  than  was  due),  yet  that  the  defendant 
niisrht  before  judgment  abate  his  avowry  for  so  much  as  was  claimed 
to  M«VAa<"/H/a5,  and  take  juda^ment  for  the  rest  (n). 

But  where  one  is  not  sole  seized,  or  has  not  sole  title  to  the  entire 
rent,  he  cannot  avow  alone,  for  such  avowry  would  be  bad. 

Therefore  parceners  must  join  in  an  avowry  for  rent  or  making 
connsrince  ;  for  they  make  but  one  heir,  and  the  rent  is  an  entire  in- 
heritance (i'^). 

Joint-tenants  also  should  join  (r). 

One  tenant  in  common  cannot  avow  the  taking  of  the  cattle  of  a 
stranger  upon  the  land  damage  feasant,  without  making  himself  bailiff 
or  servant  to  his  companion  :  for  if  one  were  to  distrain  without  the 
other,  as  there  could  not  be  a  double  satisfaction  for  the  same  injury, 
the  other  would  have  no  remedy.  As  to  any  supposed  hardship  in  one 
d;  nying  his  consent  to  the  other  avowing  as  bailiif  to  him  :  if  he  dis- 
likes his  situation  he  may  put  an  end  to  the  tenancy  by  a  writ  of  par- 
tition {(I). 

In  replevin  against  two,  they  made  several  avowries,  each  in  his  own 
rii^ht,  and  both  avowries  were  abated  ;  for  if  both  the  issues  should  be 
found  for  the  avowants,  the  Court  could  not  give  judgment  severally 
for  the  same  thina:  (i^). 

An  annuitant  may  distrain  for  a  rent  though  the  term  be  vested  in 
hioiseii  to  secure  the  payment,  for  the  grantor  will  be  deemed  quasi  te.- 
nant  to  the  party  at  a  rent  to  the  amount  of  the  annuity  (/  ).— Where 
an  action  was  brought  for  njoney  had  and  received  to  the  use  of  the  as- 
signees, and  it  appeared  that  the  money  was  paid  by  the  tenant  of  the 
bankrupt  to  the  defendant  as  grantee  of  an  annuity  granted  by  the 
bankrupt  after  an  act  of  bankruptcy  and  charged  on  the  estate  of  which 
the  priyer  of  the  money  was  tenant:  L.  Kcnijon  observed  that  the  action 
ought  to  have  been  brought  by  the  tenant,  and  caid  he  couid  not 
transfer  a  chose  ih  action,  which  this  was,  to  the  assignees.  The  te- 
nant could  not  avail  himself  of  the  payment,  but  the  assignees  might 

(a)  Salk.  ftgn.  S  Mod.  3fi.;.  s.  c.  Com.  R.  42.  s.  c-  (h)  Salk.  390. 

rc>  Bac.  Ahr  tit.  "  Repievic,"  iic.  [K.J        {d)  2  H.  Bl.  R.  38S.        (e)  Bac.  Abr.  vtarUe. 

<f)  2  BJ.  R.  )3JS. 


-.  (  t.  11]  Of  Aronries.  1"  ' 

luvc  recovered  tlit-  rtiil  uolwitlistaiuling.    TliLs  was  su1!':lu:iii  lo  ii..  ;,;._■ 
the  case  ('/). 

W  here  tli<;  lessee  has  entered  umlcr  a  lease,  II»oiit^!i  siiclj  entry  he 
torlitiiis,  it  does  not  dischari^e  the  contract  for  tlic  p  lyniciit  ol  rent  ; 
for  there  is  a  great  dilterence  l>el\veen  reulevin  and  (JLCtjiitiil  (.')• 

If  one  distrain  for  rent,  and  heforc  tl»c  avowry  the  estate  on  which 
it  was  reserved  determine,  the  avowry  shall  he  as  if  the  wtatc  on  uliich 
it  was  rc^ervcil  hail  continued,  for  the  avowant  is  to  have  tiie  rent  not- 
^\itllstandini; :  Imt  if  the  distress  were  for  a  pi.-isonal  ser\  ice,  tliC  de- 
l  iiduil  nuist  have  si)ecial  justification,  for  he  cannot  hive  the  service 
m  i>p(<ic,  whin  the  estate  isd<lcrmincd  {(). 

'1  he  di'fciul.iut  i';  re|)!cvin  need  not  htt  out  hi«  title:  f.ir  tlie  stal. 
I  1  '/.  . .  .  I  .  .  .  J.  enacts,  "  i'hat  it  shall  and  m.iy  Irj  lauiul  for  all 
dclcndanls  in  repkvin  lo  avow  or  ni;ike  conusance  generally,  that  the 
plainliJl"  in  replev-n  or  other  tenant  of  the  lands  ami  tenements  uiierc- 
on  such  distress  was  made,  enjoyed  the  same  under  a  i^rant  or  demiic 
at  such  a  certain  rent,  durin:;  the  time  wherein  the  rent  distrain; : I  for 
incurred,  which  rent  was  then  and  still  remains  due,  without  further  set- 
liujj  forth  1  he  j^ruiit,  tenure,  demise,  or  title  of  such  landlord  or  land- 
lords, lessor  or  lessors;  and  if  the  plaintiil"  or  plaintihs  in  sucJi  action 
shall  become  nonsuit,  tliscontinuc  Ins,  her,  or  their  action,  or  have 
judgment  given  against  him,  hex*,  or  them,  the  defend. :iit  or  d'  f/  lui-nt-^ 
in  such  replevin  shall  recover  double  costs  of  suit." 

The  defendant  may  avow  in  this  general  manner  wiiether  tlie  piaintiri 
Lc  tenant  or  not,  for  the  words  of  the  statute  are  in  tlie  disjuncti\e 
"  plaintiil"  in  replevin  or  other  tenant." 

M'herc  the  rent  reserved  at  the  tinic  of  entering  upon  the  prcmi.^rs, 
was  afterwards  varieil  l>y  n-ireement  between  the  parties,  yet  it  WuS 
holden  that  the  landlord  migiiL  avow  as  on  a  demise  at  a  rent  certain, 
for  that  such  subsequent  agreement  operated  by  relation,  to  make  it  a 
reservation  of  the  rent  from  the  beginning  (d). 

The  statute  was  made  lor  the  btnefil  of  laiuUords,  t]:„:  ...i ....    :  - 
',:int  had  enjoyed  the  land  he  should  not  be  allowed  to  pry  into  tiie  les- 
sor's title:  therefore,  if  the  defendant  avow  under  the  statute /«7/m/'..vi 
in  trncmnitis,  it  is  a  bad  ixnd  inadmissible  ple<i,  lor  it  allemp'iSt':  '  :'    • 
the  lessrir's  title  in  question:  were  tiie  premises  iu  nu-rt;' if", 
ample,  if  t'lis  plea  were  allowed,  the  defendant  could  . 
rent,  which  the  statute  never  had  it  in  conitiiiplotion  lu  ^      • 
rather  to  assist  (r ). 

So,  there  may  be  judgment  in  replevin  flioughthe  part . 
his  title  ;  provided  lie  thews  a  good  and  subsisiuir  .   ^ 


Co)  rratcr  k  al.  a's    of  S' 
<.b)  1  Sir  MO.  f.-,  '- 


U* 


494  Of  Avowries,  [Chap.  XYIIL 

plaintiiTeiititled  himself  by  a  lease  of  the  3t]  of  March,  the  defendant 
traversed  the  lease  modo  et  forma;  the  jur}'  found  a  lease  of  another  dat^e ; 
yet  judgment  was  given  for  the  plaintif!':  for  the  substance  of  the  issue 
is,  whether  he  has  a  lease  or  not :  yet  if  they  had  found  a  lease  from  an- 
other, it  would  not  have  done.  But  if  he  had  declared  thus  in  eject- 
Tiicnt,  it  had  been  against  him,  for  there  he  is  to  recover  the  term,  and 
is  lo  make  his  title  truly  {a). 

An  avowry  for  an  increased  rent  on  a  demise  for  every  acre  of  the 
land  w  hich  should  be  converted  into  tillage,  is  supported  by  the  evidence 
of  a  lease  for  a  term  of  years,  with  a  covenant  to  pay  the  increased 
rent  fur  every  acre  w  hich  should  be  so  converted  during  "  a  part  of 
the  term;"  for  example,  for  the  last  three  years,  by  the  stat.  11  G.  2. 
c.  19  {b). 

If  executors  avow  under  stat.  32  //.  8.  c.  37.  for  rent  in  fee,  ^-c.  due 
to  their  testator,  they  must  shew  the  land  in  the  seisin  of  tenant,  or  in 
those  who  claim  under  him  (r). 

If  a  person  distrains  as  executor  or  administrator,  he  must  bring 
himself  within  the  statute  ;  under  the  w^ords  of  which,  tlic  distress 
can  be  made  only  on  the  tenmt  in  whose  hands  the  lands  were 
chargeable,  or  some  person  claiming  under  him  ;  and  therefore  not 
in  the  hands  of  one  claiming  by  title  paramount,  as  the  lord  by 
escheat  (c/). 

But  where  the  avowry  was  as  administratrix  of  rent  to  which  the  de- 
fendant was  entitled  in  her  own  right  j  she  nevertheless  had  judgment, 
that  i)art  respecting  the  claim  as  administratrix  being  rejected  as  sur- 
plusage (t). 

The  above  Act  gives  no  remedy  where  the  testator  himself  has  dis- 
pensed with  the  arrearages,  or  had  no  remedy  when  he  died  (/)• 

An  avowry  by  husband  and  wife  for  rent  due  to  tlie  wile  alone  be- 
fore the  coverture,  was  held  to  be  good,  the  supposed  inconsistency 
being  mere  matter  of  form  ;  for  the  avowry  being  for  rent  arrear,  to 
say  that  it  was  arrear  to  him  and  his  wife,  is  but  surplusage  ;  and  al- 
though he  doth  not  say  adhuc  a  retro  ex'istit,  it  was  held  well  enough  in 
sid)stance  (^). 

Also,  if  there  be  lessee  for  years,  and  the  reversion  descend  on  a 
feme  covert,  and  afterwards  the  rent  be  in  arrear,  and  the  baron  dis- 
train, and  the  lessee  bring  a  replevin,  the  baron  ought  to  avow  in  the 
name  of  himself  and  his  wife,  and  not  in  the  name  of  himself  only,  for 
the  avowry  is  to  be  made  according  to  the  reversion,  which  is  in  the 
feme(/(). 

But  an  avowry  by  a  husband  alone  for  rent  due  to  him  and  his  w  ife 

(a)  Hob.  .72.  (6)  SH.  T?l. )?.  565.  (c)  Cio.  Eliz.  547.  (</)  Co  Lit.  1f.2,  b. 

(e)  Itnb  208.  Hac.  Abr.  tit.  "  Hepleviii,"  S;r.  TK.]  (/)  Co.  Lit.  IG2.  b.  Vaugh.  iO 

(£!  Cro.  Jac.  2B3.  (h)  13ac.  Abr.  ui  ante. 


,Sai.  li.j  (Jf  Aionrtcs.  4it.'> 

good,  if  it  appear  upon  the  record  that  fic  was  entitled  to  make  t!ic 
distress  (u). 

Though  the  defendant  may  hecn(ltlo<l  to  the  rrni,  yet  may  the  dif- 
Ircss  he  tortiou."'.  As  if  he  come  on  the  lan<l  to  distrain,  and  t!ic 
tenant  then  lender?  the  arrears  due  ;  in  pucli  case,  if  he  <li?tr.'iin  the 
cattle,  it  is  tortious,  and  tlie  defendant  may  replevy  {/>). — But  it  is  not 
sulhcient  for  the  tenant  to  say  that  l\c  was  on  the  hmd  on  the  day  and 
ready  to  pay  the  rent ;  for  if  lie  did  not  mahc  a  tender  at  thclimr  ofthci 
distress  mndi\  the  takinj^  was  not  tort  ion?  [r).  Tiie  t'lider  must  bo 
befon'  tlic  impounding',  tor  uhen  impounded  they  are  in  cuslodia 
I  c  If  is  (f/). 

Replevin  was  of  cattle  taken  in  J,  Tlic  defendant  avowed  tlic 
taking  in  A.  under  a  dcunse  of  certain  premises  of  uhieh  B.  was  par- 
cel, and  because  the  cattle  were  damage  feasant  in  Ji.  he  took  them 
and  drove  them  through  /l.  in  his  way  to  tlie  poimd  ;  and  upon  goncril 
demurrer  the  avowry  was  held  t(»  l>c  \vell  pleaded  (/). 

Non  dcmisit  ;  nothing  in  arrear  ;  nothing  in  arrcar  for  part  of  the 
rent  and  tender  of  the  residue  ;  are  good  piea^:  to  an  avowry  for 
rent(/). 

So,  a  tender  and  refusal  may  be  pleaded  to  such  avowry,  without 
bringing  the  money  into  Court  ;  becaiise  if  tlie  distress  were  not  right- 
fully taken,  tlic  defendant  must  anr>wer  the  plainliilhis  tlaniaLas  (^'■). 

After  an  avowry  for  rent  arrear  the  plaint  iil"  may  pay  into  Court  the 
rent  for  which  tlie  defendant  avows,  because  the  demand  is  certain  : 
but  not  where  the  tlam  iges  are  unliquidated  (//). 

That  the  avowant  afterwards  u^ed  or  sold  tlie  cattle  or  goods  dis- 
trained, may  also  be  pleaded  (/). 

So,  to  an  avowry  for  rent,  the  tenant  may  plead  payment  of  a 
ground-rent  to  the  original  landlord,  w  hich  he  paid  to  prot(rl  hiuisi  If 
from  a  distress:  for  it  is  a  payment  of  so  much  to  the  imm.diatc 
landlord  (/.). 

Hut  the  plaintiPi"  caniiol  plead  a  set  off;  because  this  notion  is 
founded  in  a  tort,  and  the  sl;it.  2  G.  2.  i\M^  not  extend  to  siicii 
actions;  besides  a  sct-oti"  supposes  a  dilUrent  demand  arising  in  a 
dillerent  right  (/).  Neither  can  a  mutual  demand  be  given  in 
evidence,  where  the  defendant  justifus  uutlcr  a  di'^tress. — Yet  it 
is  said,  that  he  may  plead  a  mutual  debt  of  more  than  the  rent  by 
way  of  specid  plea  to  the  avowry  (/;/).  At  all  events,  payment  may 
'>o  pleaded.     Therefore  where  to   an  avowry   for   rent,  the  l»mnt 

C";Cro.  Jac.  Ii2.  1*5  K..t>.  N.  i'   :iA7.  B   Co.   U7.  «.                           <:  .  11  ,i    i.i 

.<)  Cro.  Klij;    813.  (r)  2  It-w    i(  I'ull.  4M.                        r/JB»C    K^T"l  aott 

5)null.  K.  P.  60.  (A)  I  H-  HI.  n.  21.              t<)rom.  Dij.  !■«  ant'-  (K.  la  ) 

,>J  ♦T.  It.  S12.  14  ■'.  B«c.  Akr.  irf  nnic.  Bull  y  V   IIJ.          fw)  B«r  CA 


4M  Of  yirowries,  [Chap.  XV 111. 

pleaded  payment  of  a  ground-rent  to  the  original  landlord,  it  wag 
holdcn  sfood  (<;). 

In  an  avowry  for  non-payment  of  rent,  a  plea  in  bar  is  de  injur, 
sua  propria  absq.  hoc,  quod  prmd.  R.  repif,  &c.  Non  ccpit  is  nn  s^ood 
traverse,  but  he  should  pursue  his  tilie,  and  de  injur,  sua  propria  is 
enough  (/>). 

After  issue  joined  upon  a  plea  in  bar  to  an  avowry,  the  Court  vill 
not  suffer  the  plea  to  be  withdras^n  and  the  avowry  confessed,  without 
consent,  for  the  avowant  will  lose  his  coi-ts  (r). 

»  As  to  what  shall  be  a  dei)arture,  replevin  was  for  taking  the  plain- 
tiff's goods  and  chattels,  to  wit,  a  lime-kiln,  avowry  for  rent;  plea  in 
bar,  that  the  lime-kiln  was  affixed  to  the  freehold  :  the  Court  held  the 
plea  in  bar  bad,  because  it  was  a  departure  from  the  declaration,  w  hich 
had  treated  the  lime-kiln  as  a  chattel  (^d). 

In  an  avowry  for  a  distress  for  rent,  the  avowant  was  to  shew  a 
seisin,  and  such  seisin  by  the  stat.  32  //.  8.  c.  2.  must  be  alledged 
within  liity  years  before  the  making  of  the  avowry  or  conusance  :  and 
though  by  stat.  21  //.  8.  c.  19.  the  lord  need  not  avow  upon  any  per- 
son in  certain,  yet  he  must  alledgc  seisin  by  the  hands  of  some  tenant 
in  certain,  within  fifty  years. — Where  the  commencement  of  the  rent 
appears,  seisin  is  not  material. 

The  stat.  32  //.  8.  c.  2.  which  limits  an  avowry  or  conusance  for 
rent,  suit,  or  service,  to  a  possession  of  fifty  years  next  before  making 
the  avowry,  &c.  does  not  extend  to  a  new  rent  created  by  Act  of  Par- 
liament. 

Of  Avojvr?/,  ^'c.  for  Catlle  damngefcnsant. — Respecting  avowry  or 
conusance  for  damage- feasant,  if  the  defendant  avows,  or  makes  conu- 
sance for  damage-feasant,  he  must  shew  that  the  place  Mhcrc,  ^c.  is 
his  freehold,  or  the  freehold  of  B.  under  whom  he  makes  conusance : 
and  if  he  says  that  he  himself  or  B.  was  seised,  he  must  say  of  what 
estate  in  fee.  tail,  or  for  life. 

So,  the  bailiii'  who  distrains  for  damage-feasant  in  right  of  a  devisee, 
must  set  forth  what  estate  the  devisor  had ;  it  is  not  sufficient  to  say  in 
general,  that  he  was  seised — the  stat.  11  G.  2.  applies  only  to  avow- 
ries for  rent  arrear  (r). 

In  replevin  the  title  was  by  a  lease  made  by  a  parson,  and  the  avow- 
ry was  that  yJ.  was  seised  of  the  rectory  of  //.  and  made  the  least 
without  shewing  that  he  was  parson :  and  by  the  Court,  that  would 
have  been  a  good  exception,  had  it  not  been  said  in  the  avowry,  that;;^ 
he  Avas  seised  injure  crclesio',  which  supplies  all  (/). 

The  general  rule  indeed  in  pleading  is,  that  where  a  title  is  made 

(n;4  T.  P..  511.  (t;Com.  Di;.  iil  ante.  [3  K.  16.]  (c)  Ibid.  [3  K.  20.} 

(d)  .iT.  R.  505  /.OUac.  Abr.tit.  "  Replevin,"  &c.  [F.]  Esp.  272-8M. 

1/)Ibiil. 


Sect.  1  I.J  D]   Aionrns.  \j, 

under  a  particular  C5(ato,  the  conimrnccmcnt  of  that  oMulo  must  be 
-hewn,  l)ut  lh:it  an  c?tate  in  fee  may  l)C  ailc(li,'ed  generally  (</). 

In  an  avowry  the  issue  was,  uhethrr  tlic  place  where,  A'-r.  was  the 
freehold  of  the  avowant  or  not,  and  it  was  found  by  the  verdict,  that 
W.  was  tlie  frcehoM  of  tlie  avowant's  wife.  Ill  fur  G/r.— It  is  found 
as;aiii.st  the  avowant,  for  when  he  sailh  his  freehold,  it  is  to  be  intended 
his  sole  freehold,  and  in  his  own  ris^ht  {''). 

Though  the  rattle  of  a  strani;cr  cannot  I)e  distrained  nnh-ss  ihcy 
were  levant  and  conehanl,  yet  it  must  come  «n  the  other  side  to  sjicw 
that  they  were  not  so  ((). 

In  replevin  for  bona,  mttalii,  ct  avrria,  a  conusance  of  the  wliole  and 
a  just  jfication  for  part  is  bad  ;  for  if  a  ili?trcss  be  entire,  and  it  is  wronj 
in  part,  it  is  bid  for  the  whole  (ji). 

If  a  man  takes  a  distress  for  a  thinq  for  which  he  had  good  cause 
of  distress,  but  hai.i  t^ood  cause  of  distress  for  anotlier  thins;,  if  a  re- 
plevin is  brought  and  he  comes  into  Court,  he  may  avow  for  which  he 
pleases  ('). 

To  an  a^'ow  ry  that  the  freehold  was  in  tlie  defendant  or  tlie  paity 
under  u  liom  ho  makes  conusance,  the  plaintiff  say  in  bar,  that  it  is  hb; 
fr«ehold  ;  or  the  freehold  of  A.  antl  by  licence  he  put  his  cattle  there  -, 
or,  a  special  title  by  devise,  fine,  demise,  S:c.  (/). 

So,  the  pluintiiV  may  plead  in  bar  to  an  avowry,  dr  snji  fnrt,  witii  a 
traverse  that  lucits  in  (jiio,  A'c.  is  parcel  of  tlic  tencipenls  alledijed  to  bp 
held  (^0. 

Il'phvin  for  takinp;  his  cattle  in  the  road,  avowry  for  damacrr- 
fcasant  in  the  four  acres,  so  took  them  tliere  and  drove  them  alou.; 
the  road  to  impound  them  ;  plea,  in  bar,  that  the  road  is  not  parcel  of 
the  four  acres  ;  upon  demurrer,  the  avowry  was  held  Avell  enough  aiul 
the  plea  ill ;  for  by  connecting  the  !)C2;inning  of  the  avowry  and  conu- 
sance with  the  latter  end  thereof,  it  appeared  to  be  one  entire  transac- 
tion (/,). 

So,  the  plaintiff  may  plead  in  bar  "  tender  of  amends''  (i). 
If  the  <lefendant  pleads  that  he  was  seised  of  three  acres  iv  locus  in 
quo,  .S:c.  it  is  sufficient,  without  saying  liow  many  acres  the  locus  in  quo^ 
\c.  h  id. 

Where  there  were  two  issues,  and  one  only  found  for  the  avowant,  he 
had  judgment — Where  the  parlies  agree  in  the  Hicls,  the  circumstance 

f  the  jury  finding  otherwise  is  not  material  (A.). 

Bystat.  lil  //.  8.  r.  19.  all  plaintiffs  and  defendants  sliall  have  like 
pleas  and  like  aid prirrs  in  all  such  avowries,  conusances,  and  justifica- 

(n\  Bii<-   Abr.  tit  "  Replevin,"  kc.  [F.J  Ejp.  373.  8u.  ('■)  Hj  1.  CO  I»'i<1. 

OD  Il.i'l.  (<•)  Ibid.  {/\  Com.  Vtf.  lil.  "  Pleiulcr"  '3  K.  23  J 

(g)  ISii.  (3  K.  If,  )  (A)  nWils.  ao.V    3  Bfs.  fcPun  «»».  (»•)  Com.  D<g.utantc, 

'••  ':'..  :>■:  ]  (I)  D:ic.  Abr   n*  miU    IH;^ 


498  Of  the   Verdict  and  Judgment.        [Chap.  XVIII. 

tions  (pleas  of  disclaimer  only  excepted,)  as  they  might  have  had  be- 
fore the  Act. 


Section  III.     Of  the  verdict  and  judgment  in  Replevin. 

On  the  execution  of  the  writ  of  replevin  by  the  sheriff,  the  beasts 
distrained  are  actually  returned  to  the  plaintiff,  so  t'nt  he  hath  the 
possession  and  use  of  the  cattle  pending  the  suit ;  consequently  if  the 
plaintiff  in  replevin  hath  judgment,  it  can  only  be  for  damages. 

At  common  law  (even  before  the  statute  of  Gloucester)  the  plaintiff 
in  replevin  could  recover  damages,  and  by  that  statute  his  costs.  But 
the  avowant  or  defendant  was  not  entitled  to  either,  till  the  Tth  //.  8. 
c.  4?  which  gives  damages  and  costs  to  every  avowant,  and  to  every 
person  making  conusance,  or  justifying  as  bailiff  in  replevin,  for  any 
rent,  custom,  or  service,  if  his  avowry,  conusance,  or  justification  be 
found  for  him,  or  the  plaintiff  be  otherwise  barred.  Also,  by%tat.  21  //. 
8.  c.  19.  it  is  enacted,  "  That  every  avowant,  and  every  other  person 
or  persons  that  m?ike  any  avowry,  justification,  or  conusance,  as  bailiff 
or  servant  to  any  person  or  persons  in  tiny  replrgiare  or  second  deliver- 
ance, for  rents,  customs,  services,  or  for  damages-feasant,  or  for  rent 
or  rents,  upon  any  distress  taken  in  any  lands  or  tenements,  if  the  same 
avowry,  or  conusance,  or  justification,  be  found  for  them  or  the  plain- 
tiffs in  the  same  be  nonsuit,  or  otherwise  barred,  that  then  they  shall 
recover  their  damages  and  costs  against  the  said  plaint  iftls,  as  the  same 
plaintiffs  sbould  have  done,  or  had  if  they  had  recovered  in  the  reple- 
glare  or  second  deliverance  found  against  the  defendants"  («). 

Neither  this  statute,  nor  that  of  4'3  Eliz.  [if  the  defendant  avow  as 
overseer  for  a  distress  for  a  poor's  rate],  tie  the  inquisition  up  to  the 
same  jury  as  are  returned  or  impannelled,  as  the  stat.  U  C.2.  c.  7.  (of 
which  hereafter)  does.  If  tlienfore,  there  is  a  verdict  for  the  plaintiff, 
the  jury  usually  assesses  the  damages :  or  the  jury  after  verdict  may 
be  dismissed,  and  damages  be  assessed  by  the  Justices,  with  the  defen- 
dant's consent.  Or  if  the  jury  do  not  assess  the  damages,  and  the 
goods,  Src.  sliould  be  detained,  the  plaintiff  may  make  a  suggestion 
thereof  upon  the  roll,  whereupon  a  writ  shall  go  to  enquire  of  the 
value  of  the  cattle,  K"c.  and  damages ;  upon  which  the  plaintiff  shall 
have  judgment  for  both  (J)). 

If  there  be  judgment  for  the  plaintiff  upon  a  relicta  verificatione, 
cognovit  actionem  nil  dicit^  &c.  or  for  want  of  a  replication  to  his  plea 
ill  bar  to  the  avowry,  or  upon  a  demurrer,  a  writ  of  enquiry  of  damage? 

(a)  2  Sell.  Pract.  271.  {h)  Ibid. 


i 


Sect.  1 1 1.  J  in  Rtplii'iii.  4'>J 

fliall  he  a\\;ir(I('c]  :  or  at  the  rtHjiiest  of  the  pl.iiiiini,  i)y  tlic  assent  of 
the  tltfciidmit,  the  Juiliccs  may  assess  the  damages  \n  itlioiit  such 
writ  {(i). 

But  if  there  he  jiidi^niPiit  f()r  llie  phiintilV,  y./or/  ndhiic  drdn/t  l)y  tie- 
fault  after  appearance,  there  shall  he  a  special  vrit  of  enquiry  for  the 
value  of  the  snoods  or  cattle  and  damages. — Kitt  uhefp  the  taking  was 
hiu  fill,  the  damage  fhali  he  only  for  the  detairicr  ;  as  where  goods  arc 
taken  dania-efeasant,  an<l  detained  aflcr  amenop  tendered. 

If  the  plaintiff  lets  jiidiiment  go  hy  default,  or  hecomLS  nonsuit,  the 
defendant  is  entitled  to  hfe  judgment  pro  rrtornc,  and  to  a  writ  of  «n- 
quiry,  to  assess  his  damages  and  cost  ;  or  if  the;  defendant  get  a  ver- 
dict, the  jury  may  assess  the  d  images,  or  if  they  omit  sj  to  do  a  writ 
of  enquiry  may  go  (J>). 

The  judgment  after  verdict  for  the  defendant  need  not  express  the 
return  to  he  irrcplevisa!)le,  hecause  now  it  necessaii.y  must  ho  so, 
since  llie  statute  of  Wcslm.  2.  Therefore  a  judgment  in  repU  vi« 
"  that  the  defendants  have  a  return  of  the  cattle,  and  recover  their 
damage  and  costs  assessed  by  the  jury,"  &c.  is  gnod,  cither  as  a  'judg- 
meul  at  common  law,  lhoi;gh  the  return  he  not  adjudged  irre- 
ple\isahle,  or  as  a  judgment  under  stat.  21  II.  S.  c  lU.  ^\hich 
entitles  the  defendants  to  damages  and  costs;  hut  not  under  stat. 
17  C.  2.  (r). 

If  the  tlcfendant  upon  the  judgment  de  ret.  kab.  sue  out  a  \\v\i  pro 
ret.  hah.  and  the  sheri;i  cannot  find  the  cattle,  he  may  iiave  a  capias  in 
>vithernam  upon  the  return  of  ilm  t  longata.  lUit  if  the  defendant  has 
•judgment  for  a  return  irreplevisahle,  if  the  owner  of  the  cattle  or 
goods  tenders  all  that  is  due  on  the  judgment  and  it  is  accepted,  he 
shall  Ijave  a  writ  of  delivery  for  the  goods;  so  if  he  tenders  the  whole 
upon  tlie  judgment  which  is  ascertained  upon  the  avowry,  and  is  re- 
fused, he  shall  have  detinue  (r/). 

In  avowry  for  damagc-foasant,  defendant  had  a  verdict,  and  ad- 
judged that  he  shall  have  a  ret.  hab.  for  the  cattle,  and  a  ra.  sa.  for  the 
damages;  hut  if  the  party  tender  tlic  costs  and  damai;c.s,  the  slicrilT, 
afler  such  tender,  ought  not  to  execute  the  ret.  Lib.  Hut  if  for  want, 
of  such  tender,  he  do  execute  the  nt.  hah.  and  afterwards  the  costs  aiid 
damages  are  paid,  a  writ  si  coristare  polerit  lies  ui)nn  suggrstijig  tliat 
the  costs,  <fiv.  are  paid,  atid  this  is  to  re-deliver  the  distress,  and  is  cal- 
led "  a  writ  of  restitution"  [i ). 

It  is  now  settled,  that  pleadings  in  rcpleviii  are  v  il!)in  tlie  stat.  1 
Ann.  c.  IG.  tlierefore,  >vberc  some  issues  in  the  replev  ni  are  found 
for  the  plaintifi'  which  entitle  him  to  judgment,  and  some  for  tlie  de- 

iri)  SSell.  Pract   272.  C^J  •'•'<•  '<■■   > '•"    ^I    WW. 

4:  •:'^p]\   Prict   27"  '«■'  I'<i''. 


•jOO         Of  the  Nori  Pros.  Nonsvlt,  SCc.        [Chap.  XVIH. 

fcnclant,  the  latter  must  be  allowed  the  costs  of  the  issues  found  for 
him  out  of  the  general  costs  of  the  verdict;  unless  the  Judge  shall 
certify  that  the  plaintiff  had  probable  cause  for  pleading  the  matter? 
on  which  those  issues  are  joined  («)• 

■  An  avowant  shall  pay  costs  on  the  special  avowries  found  agains*, 
him  ;  and  shall  not  have  costs  on  the  athrmance  of  a  judgment  in  hi; 
favour  on  a  writ  of  error  {b). 

If  the  plaintiff  plead  several  pleas  in  bar,  upon  which  issues  arc 
joined,  and  some  issues  are  found  for  the  plaintiff",  and  some  for  the 
defendant,  the  latter  is  entitled  in  C.  P.  to  such  costs  of  the  trial,  as 
relate  to  the  issues  on  which  he  has  succeeded,  as  well  as  to  the  costs 
of  the  pleadings.  But  if  a  defendant  after  trial,  and  verdict  for  the 
plaintiff,  oljtain  judgment  non  obstante  veredicto,  in  consequence  of  the 
plaintiff's  pleas  in  bar  being  bad,  he  is  not  entitled  in  that  Court,  to 
any  costs  upon  the  pleadings,  subsequent  to  the  pleas  in  bar,  because 
he  should  have  demurred  to  them :  indeed  if  the  avowant  will  not  take 
advantage  of  a  fault  in  the  plaintiff''s  pleadings  when  he'has  the  op- 
portunity of  so  doing,  he  becomes particeps  cnmitiis  (r). 

The  certificate  of  probable  cause  is  not  required  to  be  made  in 
Court,  at  the  trial  of  the  cause;  and  where  the  judge  refuses  to 
grant  it,  the  Court  have  not  a  discretionary  power,  Mhcther  the} 
will  allow  the  plaintiff  any  costs  at  all;  but  are  bound  by  tht 
statute  to  allow  him  some  costs,  though  the  (quantum  is  left  to  thci: 
discretion  {d). 

Of  the  Non  Pros.,  Nojisidf,   Verdict,  and  Judgment  under 
Slat.  17  Car.  2.  c.  7.  where  the  Distress  was  for  Bent. 

If  the  cause  has  been  removed  into  the  sui^erior  Court  by  the  plain- 
tiff, and  after  the  defendant  has  appeared  he  does  not  declare  or  pro- 
ceed therein  ;  or  if  the  cause  has  been  removed  by  the  defendant,  and 
a  rule  having  been  served  on  the  plaintiJf,  he  does  not  declare  or  pro- 
ceed therein  ;  the  defendant  may  in  these  cases  sign  di  non  pros,  enter 
■Q^  ^\M\gn\tuX  pro  rctorno  habcndo,  and,  if  the  original  distress  were 
made  for  rent,  he  may  proceed  to  execute  a  writ  of  enquiry  of  dama- 
ges, which  is  the  l>ettcr  way  than  taking  out  a  wx'ii pro  rctorno  habcn- 
do,  because  that  writ  may  be  superseded  l)y  the  plaintiff  suing  out  a 
writ  of  second  deliverance,  as  has  heen  seen  before  (<;}. 

For  the  stat.  17  C.  2.  c.  7.  which  is  an  Act  for  the  more  speedy  and 

(n)  2  Sell.  Pract.  2<3.  (6;  Ibid.  (c)  1  TiJd'sPract.  C16.  (d)  Ibid.  617. 

rO  2  Sell.  Pract.  2G7. 


-^rci.  in.]         Of  Ihi    \()ii  Pros.  Xon<;ui(,  cVr.  jOl 

eJlcctiial  proceeding'  upon  (listrcsscs  and  avowries  for  rent,  after  retit- 
ing  that  "  I'orusnuich  as  the  ordinary  remedy  lor  arrcarat^es  of  rents 
is  by  distrefises  upon  the  lands  cliari,'eal)le  therewith  ;  and  yet  iiever- 
theh'-ss,  by  reason  of  the  intricate  and  dihitory  procccdin'^s  upon  re- 
plevins, that  remedy  is  lu-comc  inelleclual :"  hy  Sect.  2.  enact.",'*  That 
•whensoever  any  plaintiff  in  replevin  sli.ill  he  nonsuit  before  issue 
joined  in  any  unit  «)f  replevin  by  plaint  or  writ  lawfully  returned, 
removed,  or  deix-ndini  in  any  of  the  King's  Courts  at  H't st- 
viinstrr,  that  the  defendant  makiuL;  a  sug;;e5lion  in  nature  of  an 
avow  ry  or  cognizance  for  such  rent,  to  ascertain  the  Court  of  the  cause 
of  distress,  the  Court  uj)on  his  jirayer  shall  award  a  writ  to  thesherifF 
of  the  county  where  the  distress  was  taken,  to  enquire,  by  the  oaths 
of  twelve  good  and  la^^ful  men  of  his  bailiwick,  touching  the  sum 
ill  arrcar  at  the  time  of  such  distress  taken,  and  the  value,  of  the 
goods  or  cattle  distrained  :  and  thereuj)on  notice  of  fifteen  days  shall 
be  given  to  the  plaint  ill'  or  his  attorney  in  Court,  of  the  siltini;  of 
such  enquiry  ;  and  thereupon  the  sheriff  shall  enquire  of  the  trutii  of 
the  matters  contained  in  such  writ  by  the  oaths  of  t\Nelvei;ood  and 
lawful  men  of  liis  county;  and  ujjon  the  return  of  such  in(|ui^iti('ll, 
the  defendant  shall  have  judgment  to  recover  against  the  plaintiff  the 
arrearages  of  such  rent,  in  case  the  goods  or  cattle  distrained  shall 
amoimt  unto  that  value;  and  in  case  they  shall  n.jt  amount  to  that 
value,  tiu'n  so  much  as  the  value  of  the  said  goods  anil  c.itlle  so  dis- 
trained shall  amount  unto,  together  w  iiji  Ids  full  costs  of  suit,  and 
eliall  have  execution  tlureupou  \)y Jiirijudiis,  or  il(git,  or  otiurwisc, 
as  the  law  sh.dl  recjuire  :  and  in  case  such  plaint iif  shall  be  uou'^mt 
after  cognizance  or  avowry  maile,  and  issue  joined,  or  if  IjiC  verdict 
shall  be  given  against  such  plaintiii",  then  the  Jurors  that  are  impin- 
nelled  or  returned  to  enquire,  of  such  issue,  shall,  at  the  prayer  of  the 
defendant,  enquire  concerning  the  sum  of  tlie  arrears,  ami  the 
value  of  the  goods  and  cattle  distrained  ;  and  thereupon  the  avow- 
ant, or  he  that  makes  cognizance,  shall  have  judgn»ent  for  such 
arrearages,  or  so  much  tiiereol  as  the  ^oods  or  cattle  distr.ii'i'J 
amount  unto,  together  with  his  lull  costs,  an>i  shall  have  exvcuhon 
of  the  same  by  fieri  Jdciusy  or  cici^it,  or  utucrwibe,  as  the  Uw  shall 
require." 

Sect.  3.  gives  the  like  remedy  to  tlie  avowant  ur  pirly  luakiii^ 
i:ognizuice  for  any  rent,  iip"ii  a  jmlguitul  j^ivcn  lui*  Imn  upon  Uc- 
nuurer. 

Sect.  4.  enables  the  party  or  his  representatives  to  distrait:  ugaia 
for   the  residue  of  the  arrears,  in  case  the  value  oi  toe  calUe,  cvc. 
-taken  by  the  firjt  distress  shall  not  be  iha  fail  value  ul  tiie  aifca.i  JiS- 
traint,d  tor. 

65 


502  Of  the  Non  Pros,  Nonsidty  SCc,    [Chap.  XVIII. 

By  the  above  statute,  in  case  of  a  nonsuit  or  non  pros,  before  issue 
joined,  defendant  may  enter  a  suggestion  upon  the  record,  in  the 
nature  of  an  avowry  or  conusance,  and  thereupon  sue  out  a  writ  of 
enquiry  ;  but  in  case  of  a  nonsuit  at  the  trial,  or  of  a  verdict  for  de- 
fendant, the  jury  at  the  trial  must  enquire  of  the  rent  in  arrear,  and 
the  value  of  the  goods  distrained  («). 

If  they  omit  to  make  such  enquiry,  no  other  jury  can  afterwards 
make  it ;  no  writ  of  enquiry  therefore  can  go,  the  defendant  cannot 
enter  hisjudgmrnt  according  to  the  statute  and  proceed  to  executioif 
by/. /a.  or  ca.  sa.  but  must  resort  to  his  conmion  law  judgment,  and 
sue  out  his  writ  de  retorno  habendo:  and  this  if  the  jury  omit  to  en- 
quire either  of  the  rent  or  the  value  of  the  goods,  for  they  must  assess 
both  ;  as  the  statute  must  be  strictly  complied  with  {b). — But  this  is 
only  in  cases  of  rent  within  the  statute  ;  and  not  in  those  of  nonsuit  in 
other  cases:  indeed  Lord  Hard7vicke  hns  laid  it  down,  that  in  every 
case,  unless  wli^  re  the  Court  is  tied  up  by  this  statute,  a  writ  of  enqui- 
ry may  be  granted  in  order  to  do  complete  justice  (r). 

If  the  piaintlii'  become  nonsuit,  the  defendant  is  not  bound  to  take 
his  remedy  under  the  statute,  but  has  his  option  either  to  proce'^d  by 
writ  of  enquiry  under  it,  or  to  bring  his  action  against  the  plaintiff  and 
his  sureties  on  the  replevin  bond  {d). 

Nor  does  the  statute  take  away  or  alter  the  judgment  at  common 
law  ;  it  only  gives  a  further  remedy  to  the  avowant.  So  that  after  a 
nonpros,  plaintiif  may  still  enter  his  judgment /jr<7  reforno  ;  but  it  is 
better  to  make  a  suggestion,  and  proceed  by  m  rit  of  enquiry  ;  because 
if  the  pbintijf  sue  out  a  writ  of  second  deliverance,  it  will  operate,  as 
has  been  observed,  as  a  supersedeas  of  the  ret.  hub.  but  not  so  to  the 
writ  of  enquiry  :  for  by  this  statute,  the  legislature  intended  that 
the  proceeding  by  writ  of  enquiry,/,  fa.  and  elegit,  should  be  final 
for  the  avowant  to  recover  his  damages,  and  that  the  plaintilT  should 
keep  his  cattle  notwithstanding  the  course  of  awarding  a  ret.  hab. 
"Hrhich  is  the  right  judgment,  and  is  still  entered  up  as  before  the 
statute  (e). 

If  plaintiiT  in  replevin  is  nonsuited,  the  defendant  is  not  bound  to 
have  his  damages  assessed  by  the  jury  under  17  Car.  2.  c.  7.  or  to  take 
the  earliest  moment  to  prosecute  his  writ  de  retorno  habendo  :  and  he 
may  again  distrain  the  same  goods  for  rent  sul)sequently  accrued  pre- 
viously to  executing  his  retorno  habertdo  without  waiving  his  action 
against  the  sureties  in  the  bond  ( /). 

(a    2  Sell.  Pract.  £69.  (6)  Ibid.  (c)  Ca.  temp.  Hardw.  13». 

(rf)  2  Sell.  Pisct.  2G9.  fe;  Ibid.  (/)  1  Taunt.  218. 


Sect.  III.]       Of  the  Non  Pros.  Nonsuit^  SCc.  oO;i 

Where  the  judgment  is  for  the  tlcfcmlint  after  verdirt,  if  the  jury 
have  not  ciujtiircd  at  llie  trial  as  tlic  statute  directs,  it  must  f>c 
entered  up  as  a  coiuuion  law  judi;in<nt  pro.  ret.  hub.  But  if  tiic  jury 
Iiavc  assessed  damages,  but  not  the  amount  of  the  rent,  ^-c.  it  may 
be  entered  as  a  judgment  under  stat.  21  II.  8.  c.  lU  :  and  the  Court 
will  permit  the  liefcndaut  to  amend  hisjud-ment  if  entered  as  under 
the  stitute,  and  not  warranted  thereby,  to  make  it  a  common  law- 
judgment  («). 

Where  the  (h-frtidant  made  conusance  for  rent  in  arrear,  and  the  jury 
found  a  verdict  for  him,  and  dauK^es  to  the  amount  of  the  rent  claim- 
ed in  his  conusance,  without  finding  cither  the  amount  of  the  rent  in 
arrear  or  the  value  of  the  cattle  distrained,  and  judgment  was  entered 
for  thcdama-^es  aistssed,  the  Court  permitted  the  defendant  to  anund 
his  judgment,  and  to  enter  a  judgment  y^ro.  rcL  hah.  alter  a  writ  of 
error  brought  (/>). 

In  replevin  the  plainti^T  avowed  for  a  year's  rent  ;  verdict  for  the 
defendant ;  but  no  value  found  for  t  lie  jury.  It  was  moved  for  a  writ 
of  enquiry  under  the  stat.  IT  C.  2.  r.  7.  to  ascertain  the  rent  in  arrear, 
and  the  value  of  the  cattle.  Gould  J.  (loul)tcd  whether  it  could  be 
granted  to  supply  a  defective  verdict  in  case  of  rent  ;  though  after  a 
judgment  by  default  it  would  certainly  lie  ;  and  added,  that  Uurroivs 
note  of  Andrews  and  Jmnrs,  M.  2t  G.  2.  B.  li.  appeared  (o  be  a 
judgment  by  default.  However,  no  cause  bcin^  shewn,  the  rule  was 
made  absolute  (r). 

If  there  has  been  no  avowry,  the  Court  Avill  set  aside  a  writ  of  en- 
quiry obtained,  and  the  inquisition  thereon;  for  the  avowry  is  in  the 
nature  of  a  declaration,  and  is  the  only  ground  of  an  enquiry,  for  the 
defendant  in  replevin  (r/). 

The  stat.  11  G.2.  c.  11).  s.  22.  gives  the  defendant  or  defendants  in 
replevin  making  avowry  or  conusance  upon  distresses  for  rent,  reiic'", 
heriot,  or  other  service,  in  case  the  plaintilf  in  the  action  shall  become 
nonsuit,  discontinue,  or  have  judgment  against  him,  double  costs. — 
The  avowry  must  be  for  taking  the  goods,  ^c.  as  a  distress  ;  else  it 
will  be  out  of  the  statute  (/ ). 

This  statute  does  not  extend  to  a  rent-charge,  orscisure  for  a  heiiot 
■jstom  (/)• 

Where  a  statute  gives  double  costs,  they  arc  calculated  thus  :  1.  the 
common  costs  ;  and  therj  half  the  common  costs.  If  trel)le  costs,  1. 
!ie  common  costs ;  2.  half  of  these,  and  then  half  of  the  latter  {g). 

la)  I  Ti'inl    271.  1  T.  U.  bOO.  (b)  1  T.  R.  3H.  (e)  3  Bl.   W.  763 

f(i(B»c   Abrjl.tl"  Keplevin."  i:c.  [D.J  («)  2  S©U.  r.»Ct.27i. 

;/)  )  TlJJiirrict  «31.  (f   lbi<. 


[  504  ] 

Section  IV.      Of  the  Remedies    where  the  Pledges  prove 

irLSiifflcierit. 

1.  By  Action  against  the  Sheriff . 

2.  By  Scire  Facias  against  the  Pledges, 

3.  By  Proceeding  on  the  Replevin  Bond. 

].  Of  the  Action  agednst  the  Sheriff. 

The  sheriff,  upon  making  replevin,  is  bound,  as  has  been  before 
stated,  to  take  pledges,  and  they  must  be  suflicieut  pledges  ;  for  if  they 
are  not,  an  action  on  the  case  will  lie  against  hira  ;  the  Court,  howe- 
ver, will  not  proceed  in  a  summary  way,  by  granting  an  attachment 
against  the  sheriff  for  neglecting  to  take  a  replevin  bond  {n). 

In  case  pledges  are  taken  and  they  prove  to  be  insufhciint,  tlie  party 
has  a  double  remedy,  viz.  against  the  sheriff  and  against  tlie  bail  ; 
against  the  sheriff  by  action,  and  against  the  bail,  if  the  (iistress  was 
not  for  rent,  by  scire  facias  ;  if  for  rent,  either  by  scire /arias,  or  up- 
on the  replevin  bond,  assigned  according  to  the  stat'..te  (jb). 

If  insufficient  pledges  de  retorno  habtndo  be  taken  by  the  officer  of 
the  Court  below  in  the  replevin,  the  remed^y  against  him  is  by  acticn, 
and  the  Court  of  Common  Pleas  will  not  order  him  to  pay  the  costs  re- 
covered by  defendant  in  replevin  (c). 

The  pledges  taken  by  the  sheriff  when  the  distress  is  not  for  rent  are 
according  to  the  statute  of  Wcstm.  2.  and  may  be  by  bond,  and  that 
too  of  the  plaintiff  himself  only,  for  the  sheriff  being  answerable  for 
the  sufficiency  of  the  pledges,  may  take  the  security  as  lie  pleases,  since 
it  is  at  his  own  peril  (r/). — But  he  cannot  take  money  or  cattle  as  a 
paw  nor  pledge  (f). 

The  pledges  taken  when  the  distress  is  for  rent  are  governed  by  stat. 
11  G.  2.  c.  19.  and  must  be  by  bond  with  two  sureties,  and  ought  to 
be  at  least  in  double  the  va!ue  of  the  goods  distrained.  Tiie  sheriff, 
the  under-sheriff,  and  the  replevin-clerk,  are,  as  has  been  b<  fore  observed, 
all  liable  to  the  defendant  in  replevin  for  the  sufficiency  of  the  pledges 
de  retorno  kahendo  (/). 

The  mode  of  proceeding  on  the  stat.  11  G.  2.  c.  19.  is  now  sene- 
rally  preferred  to  the  old  remedy  by  sd.  fa.  w  here  the  distress  was  for 
rent  ;  and  it  is  not  affected  by  the  stat.  \7  C.  2.  c.  7.  for  where,  in  pr.r- 
6uance  to  that  statute,  the  avowant  had  judgment  for  want  of  a  plea 
in  bar,  it  was  held  that  he  had  tvro  methods  of  proceeding  in  his  elec- 

(a)  2  T.  R.  fil7.  2  Sell.  Pract.  2G2.  (6)  Ibid.  Gilb.  L.  of  Rep.  220. 

(c)  I  Bos.  Si  Pull.  N.  R.  292.  (cj)  Ibid.  97.  («)  Cro.  Car.  446. 

</J2Bl.K.  1220. 


-^.ct.  IV.]  Of  the   ncmethcs,  Kc.  .OOS 

fion  ;  namely  either  to  execute  a  writ  of  enquiry  or  to  Piif*  upon  tlie 
replevin  bond  ;  the  plaintijl"  n(tl  havai:;  prosecuted  liis  Fuit  with  ef- 
fect (m). 

The  action  ou^hl  to  he  broui;ht  in  the  name  of  the  per?on  making 
conusance,  where  there  is  on  avowant  on  record  (A). 

In  the  action  against  the  .sherili"  ?onie  evidence  mw^t  l)e  given  !)y 
the  plaintiif  of  tiie  inpufTiciency  of  the  jjledgcp  ;  hut  very  sHght  evi- 
dence is  Fii  flic  lent  to  throw  the  proof  on  the  sl»crilf;  for  the  sureties 
are  known  to  him,  anil  ho  is  to  take  cire  that  they  arc  saflVnent  (r). 

This  action  a!;ain>t  the  shcriif  will  lie  without  any  scire  facias  pre- 
viously pucd  out  against  the  hail.  Ihit  in  the  case  before-mentioned, 
after  jud:^ment  pro  ret.  ami  an  rloignmcnt  returned,  the  Court  on  mo- 
tion 2,ranleil  a  rule  aL;aiiist  the  sherifl",  under-sheriiT,  and  replevin- 
clerk,  to  pay  the  defendant  o7l.  \os.  the  amount  of  the  verdict  in  re- 
plevin (damages  and  costs),  together  with  costs  of  the  application  (W). 

Much  doubt  has  been  entertained,  and  the  Courts  still  difler  as  to 
the  f/u(iiifunioi  dami<i;es  which  the  plaintlli  ought  to  recover  in  this  ac- 
tion aj;ainst  the  sherijf  for  taking  insulUcicnt  pledges. 

Jn  the  King's  Bench  it  is  held,  that  the  plaintijf  cannot  recover' be- 
yond the  value  of  the  distress.  The  argument  is,  that  the  duty  of 
the  shcriiV  as  j)rescribed  by  the  Act,  is  to  take  the  bond  for  prosecuting 
the  suit  and  for  a  return  of  the  goods,  if  a  return  shall  be  awarded  ; 
the  bond  therefore  would  be  satii^Iicd  by  returning  the  goods  taken.  If 
so,  the  value  of  those  goods  seems  to  be  the  true  measure  of  damages 
to  be  given  by  this  action.  That  by  the  stat.  Wcstm.  2.  it  is  specifically 
mentioned,  that  if  any  take  pledges  otherwise,  he  shall  answer  for  the 
price  of  the  beasts ;  and  that  tlie  11  (I.  2.  docs  not  enlarge  the  sherirl'F 
re.'-p»»n«ibility  in  this  respect  (^) 

Hut  in  the  Common  Pleas  the  direct  contrary  was  holden,  for  tliat 
Court  held  that  the  plaintid'  might  recover  the  amount  of  his  rent,  hi? 
Costs  in  the  replevin  suit,  the  value  of  the  goods,  and  wiiatevcr  oilier 
damages  the  jury  might  give  him,  even  beyond  the  penalty  of  the  re- 
plevin bond,  /.  r.  more  than  double  the  value  of  the  goods  distrain- 
ed (/).  However,  this  cloctrine  was  shortly  after  ovcr-niled  :  and  the 
Court  held  thesheriif  liable  to  the  extent  of  tlouble  the  value  of  the 
j^oods  distrained,  but  no  farther;  by  analogy  to  the  liability  of  the 
sureties  (if). 

2.    Of  the  El  mi  fly  by  Scire  Facias  against  the  Plidgcs. 

Another  remedy  which  the  defendant  in  replevin  has,  if  the  plaintijf 
does  not  make  a  return  of  the  goods  when  a  return  has  been  awarded, 

(n)  Oilh   L.  of  Rep  .225.  3  WiJu.  a  (fc)  I  Pull,  k  Bov  T78.  (ej  Bull.  N.  P.  60. 

(d    2  Sell  Pnict.  2hl   a  HI.  n   12J0.  ft)  2  !J«J1.  Prtct  2GJ.  (/)  Ibid.  26*. 

{g)  IbiJ  547.     Willes,  37J. 


506  Of  the  jRemedies,  SCc,  [Chap.  XTHI. 

is,  by  scire  facias  against  the  pledges.  Before  a  scire  facias  issues, 
a  writpro  "ct.  hab.  must  have  been  sued  out,  and  an  elongata  or  eloign- 
raent  be  returned  by  the  sheriff.  After  which,  if  the  names  of  the 
pledges  be  not  known,  an  application  may  be  made  to  the  replevin- 
clerk,  and  if  he  refuses  or  delays  to  tell  them,  the  Court  on  motion  will 
make  a  rule  upon  him  for  that  purpose  («). 

If  the  plaint  has  never  been  removed,  the  defendant  may  sign  a  non 
pros,  in  the  Court  below,  and  have  a  precept  in  the  nature  of  a  scire 
facias  {b). 

Note.  The  two  preceding  remedies  are  used  where  the  distress  is 
not  for  rent,  as  well  as  where  it  is. 

3.     Of  the  Bemedy  on  the  Replevin  Bond. 

When  goods  are  taken  in  distress  for  rent,  and  replevied,  the  dis- 
trainer has  no  lien  on  tlie  goods,  but  is  left  to  his  remedy  on  the  re- 
plevin bond  (r). 

The  usual  remedy,  therefore,  where  the  distress  is  for  rent  and  a  re- 
plevin bond  is  entered  into,  according  to  stat.  11  G.  2.  c.  19.  is  by 
taking  an  assignment  of  the  replevin  bond,  and  bringing  an  action 
thereon  against  the  pledges  in  the  defendant's  own  name  ((/). 

By  the  statute,  the  sheriff  is  ordered,  at  the  request  and  costs  of  the 
avowant,  or  person  making  conusmce,  to  make  an  assignment. 

A  replevin  bond  may  be  assign*id  to  the  avowant  only,  or  he  may 
bring  his  action  upon  it  without  joining  the  party  making  conusance  (<?). 

A  defendant  in  rep'evin  is,  indeed,  entitled  to  an  assignment  of  the 
bond,  if  the  plaintiif  in  replevin  d.i  not  appear  in  the  County  Court 
and  prosecute  dccordmg  to  the  condition  (/);  which  condition  is  not 
satisfied  by  a  prosecution  in  the  Coanty  Court,  but  the  plaint,  if  re- 
moved by  refalo  into  a  superior  Court,  must  hi-  prosecuted  there  with 
effect, and  a  return  made,  if  adjudged  there  (.;'•).  fa  ^-ach  case,  the  de- 
fendant may  sue  on  the  bond  as  assignee  of  the  sheriff  in  the  superior 
Court,  though  the  replevin  be  not  removed  out  of  tlie  County  Court  ; 
averring  in  his  declaration,  that  the  plaintiifdid  not  appear  at  the  next 
County  Court  and  prosecute  according  to  the  condilioii  of  the  bond  (/;). 

The  bond  may  be  assigned  four  days  exclusive  after  the  time  limit- 
ed therein  for  plaintiff  to  prosecute  his  suit  (/). 

The  action  must  be  brought  in  the  same  Court  in  tvhich  the  refalo 
is  returnable.  The  mode  of  assigning  and  proceeding  is  the' same  as 
on  a  bail-bond  {Jc). 

The  two  sureties  in  a  replevin  bond,  are  together  liable  only  to  the 
amount  of  the  penalty  in  the  bond,  and  the  costs  of  the  suit  in  the 
bond  (/). 

(a)  2  Sell.  Pract.  266.         (h)  2  Wills.  41.  ie)  1  Br.  R.  427.  {i)  2  Sell.  Pract.  2«6. 

(e)  1  Pull.  &  Bos.  373.  (/)  5  T.  R.  195.  (r)  I  PnH  ^  Bos.  410.  {h)it.  R-  195. 

(»)  2  Sell.  Pract.  26fi.  (fc)  Ibid.  267.  \l)  1  Taunt.  21S. 


I   ^07  J 


CHAPTER  XIX. 


Remedies  for  Tenants  against  Landlords 
(continued). 

Of  the   Remedies  for  an  vnfonndtd,  irregular,  or  excessive 

JJistress. 


Section  I.      For  Rent  pretended  to  he  Arrear. 
Section  II.     For  other  supposed  Right  to  distrain. 


IT  has  ])een  seen  that  vlicrc  the  goods  or  cattle  of  a  person  have 
been  taken  as  a  distress,  whether  on  the  ground  that  they  arc  liaMe 
for  rent  arrear  or  damaq;e-feasant,  the  party  so  distrained  upon  may 
contest  the  distrainer's  right  by  an  action  of  replevin;  biside  that 
action,  hoMCver,  the  law  allords  other  remedies  where  the  distress 
is  unfounded  ;  these  are  hy  action  of  trespass  dc  bonis  asportatis,  or 
qiiare  clausum /regit ^  for  damages  j  or  trover  for  the  value  of  the  thing 
distrained. 

Trespass  quare  cl  an  sum  f regit  was  the  remedy  commonly  resorted  io 
of  old,  not  lucrely  as  a  remedy  for  a  distress  wrongfully  taken,  but  as  a 
means  of  trying  the  title  to  lands  and  tenements,  the  title  frequently 
coming  into  question  in  the  course  of  that  action  ;  that  action  however 
has  of  lute  years  been  in  some  dej^ree  superseded  by  that  of  replevin  in 
the  one  case,  and  ejectment  in  the  other. 

Still,  however,  these  actions  of  trespass,  and  thai  of  trover,  arc 
open  to  the  party  who  means  to  contest  the  valitlily  of  a  ilistress.  The 
proceedings  liave  in  elicct  much  similarity  ;  but  in  rrsju-ct  to  prt)of  of 
tille  (where  the  tli^lrcss  was  for  f'aniage-feasanl),  the  attion  of  rrp!''vin 
being  more  striet  than  tliat  of  trespass  for  taking  and  carrying  away 
the  goods,  Ihc  latter  remedy  is  often  preferred. 


[    5a8    j 


Section  I.     Remedies  for  unfounded  Distress  for  Rent 
pretended  to  he  Arrear, 

To  entitle  a  man  to  bring  trespass  he  must,  at  the  time  when  the  act 
was  done  which  constitutes  the  trespass,  either  have  the  actual  posses- 
fiion  in  him  of  the  thing  which  is  the  object  of  the  trespass,  or  else  he 
must  have  a  constructive  possession  in  respect  of  the  right  bein  ^  actu- 
ally vested  in  him  («). 

This  action  lies  for  an  unlawful  taking;  as  if  the  distress  be  made  at 
night.  So  if  beasts  of  the  plough  had  been  taken  when  other  sufficient 
distress  could  have  been  had.  So,  if  doors  have  been  broken  open  (or 
enclosures  thro\\  n  down),  to  make  it,  for  the  outer  door  can  in  no  case 
be  broken  open,  except  under  the  direction  of  stat.  11  G.  2.  c.  19.  of 
which  we  have  before  treated. 

But  in  distress  for  rent,  if  the  outer  door  be  open,  the  person  dis- 
training may  justify  breaking  open  an  inner  door  or  lock  to  find  any 
goods  which  are  dislrainable  (b). 

So,  even  where  trespass  was  for  breaking  and  entering  the  plaintiff's 
house  and  taking  his  goods,  and  the  case  in  evidence  was  that  the  de- 
fendant having  with  him  a  constable,  had  entered  the  plaintiff's  house 
to  make  a  distress  for  rent.  After  he  had  told  his  business  and  began 
to  take  an  inventory,  the  plaintiii's  wife  tore  his  paper,  beat  him  and 
the  constable  out,  and  then  blocked  up  the  door  ;  about  an  hour  after 
the  defendant  with  several  others  returned  and  demanded  admittance, 
which  being  refused,  he  broke  open  the  doors.  It  was  ruled  by  Wil- 
mot  J.  that  the  distress  having  been  lawfully  begun  and  not  deserted, 
but  the  defendant  compelled  to  quit  it  by  violence,  this  Mas  a  re-con- 
tinuance of  the  first  taking  and  so  was  lawful, though  he  could  not  when 
he  first  came  have  so  broken  open  the  doors  (r). 

Trespass,  or  Case. — The  stat.  2  W.  Sr  M.  scss.  1  c.  5.  s.  5.  provides, 
«  that  in  case  any  distress  and  sale  as  aforesaid,  shall  be  made  by  vir- 
tue or  colour  of  that  Act,  for  rent  pretended  to  be  arrear  and  due, 
where  in  truth  no  rent  is  in  arrear  or  due  to  the  person  or  pers<Wis  dis- 
trainin;^  ;  or  to  him  or  them  in  whose  name  or  names,  or  right,  such 
distress  shall  be  taken  as  aforesaid,  that  then  the  owner  of  such  goods 
or  chattels  distrained  and  sold  as  aforesaid,  his  executors  or  administra- 
tors, shall  and  may,  by  action  of  trespass,  or  cjjon  the  case,  to  be 
brought  against  the  persons  so  distraining,  any  or  either  of  them,  his 
or  their  executors  or  administrators,  r'^cover  double  of  the  value  of  the 
goods  or  chatteis  so  distrained  and  so.d,  together  with  full  coslt  of  suit." 

(a)  Cro.  Jac.  4«.  1  T.  R.  i'M.  (b)  Bull.  N.  P.  [UK]  (c)  Esp.  >".  P.  3S2. 


Se(  t.  H.]  Remedies  for  an   unfounded,  A  r.  .009 

The  plaiiitiiT  qave  a  note  of  hand  for  nut  ancar,  and  took  a  rcccii-t 
fur  it  vvIkm  |):ii(l,  the  d(fin(lurit  aflrrwanls  distrained  for  r«'tit,  the 
plaiii1i(TI»r(»us;;ht  trcsp:i«;5;  ami  it  was  holdcn,  that  not  withstand  ini;  this 
note,  till"  dtfcndaiit  Miit;ht  distrain,  for  it  is  no  altcrulion  of  the  d«  !it 
till  p.iynu'iit. — Hut  if  ./.  indorse  a  note  to  JL  f.tr  a  precrdrnt  del)t,  and 
li.  i;iv('  ;i  rcocipt  f«»r  it  as  ujonfv  wlicn  paid,  vol  if  he  n'glect  to  ap])ly 
to  thr  drawir  in  lime,  and  hy  his  Luhis  the  note  i'^  lobt,  it  uiil  cvlin* 
gni:;h  the  precedent  del)t,  and  in  an  action  lie  would  he  nonsui1<d  (n). 

If  a  lafidlord  accept  a  l)ond  f<)r  rent,  t!»is  docs  not  exlini^nisli  it,  for 
the  rent  is  higher,  and  the  acceptance  of  a  security  ot  equal  tle^rcc  is 
no  extiui^uishn'Mit  of  a  del»t,  a-s  a  statidf  staple  for  a  bond  :  hut  a 
judgment  ohtained  iij)on  a  bond  is  an  extinglli^llnlent  of  it  (^). 

Tocovmant  for  ri lit  aj;.iin<t  three  defentlants,  it  was  pleaded,  that 
of  rent  tl/.  was  paid  ;  that  of  the  residue,  two  of  tlie  dt-hndants  had. 
paid  their  shares,  and  that  the  defendant,  Mil(hrl,  i;avc  the  plauiti:!'  a 
promissory  note  fur  his  share,  payable  at  a  banker's;  that  sucli  note  \ia!i 
dishon')ureil,  whereupon  the  plaintill'  sued  Mitchil  and  had  jtulgnient 
by  default  on  such  note,  which  judgment  wa$  still  unsatisfied.  \\  lien 
the  plea  was  pleaded,  the  defendant  was  under  teruib  to  plead  is-uably. 
The  plaintiir  treated  it  as  no  plea  under  a  Judge's  order  and  si;;ned 
judi^niont  for  want  of  a  plea.  On  cause  being  shewn,  the  defen.l.'.ni*s 
counsel  contended  that  the  plea  was  good  ;  for  that  the  action  on  the 
covenant  averred  in  the  jud^ruicnt  on  the  note,  and  the  tiefendiinl  l;.id  a 
right  to  avail  himself  of  the  point.  L.  Kcuijon.  "The  judguuni  us  a 
merger  of  the  original  cause  of  action  where  it  is  obtained  immediate  y 
on  tiie  original  cause  itself;  l)ut  is  no  nierger,  uhere  it  is  on  a  coliat- 
teral  point,  unless  the  fruits  of  it  be  obtained."  The  defendant's  coun- 
sel then  said,  that  at  any  rate  the  plaint iif  ought  not  to  have  signed 
judgment ;  he  ought  to  have  demurred.  3  Bur.  J  738.  L.  Kcui/ott.  "  I 
suspect  that  this  plea  is  founded  on  knavery  ;  it  goes  to  deft..!  the  jus- 
tice of  the  case;  but  I  iVar  that  the  plaintill  vvas  not  justiliel  in  treat- 
ing it  as  no  plea,     lie  ouglit  to  have  demurred.     Rule  absolute  («). 


Section   II.     For  ol/ur  ^uji}fo:i((l  Rii'hl  to  dl>lr<nn. 

If  the  distress  was  made  for  other  supjx)scd  cau.»e,  than  under  pre- 
tence of  rent  arrear,  wiien  in  truth  it  wo^j  unfounded,  tresjkits  also  lie* 
for  the  illegality. 

.•\fter  juilginent  vacated,  and  re5titolijn  award-d,  th"  dc'^K  int 
brought  trespass  against  the  plainliil  tor  taking  t  he  gtK)ds,  and  the  V^url 

■a)  DuU   .V   P  'W  <i-.  IbM.  (*;  Df«.;«  V   MlUiMi.MaL  M  7-  *2  0.  3  TiilSS 

00 


510  Jxtmcdies  for  an  unfounded,  [Chap.  XIX. 

held  that  the  action  would  lie  ;  for  by  vacating  the  judciraent  it  is  as 
if  it  had  n?ver  been,  and  i?not  like  a  judginent  reversed  by  A\rit  of  er- 
ror.— But,  in  such  case,  it  would  not  lie  against  the  sheriii,  who  has 
the  King's  writ  to  warrant  hini  ;  but  the  i)arty  must  produce  not  on- 
Jy  the  writ,  but  the  judgment  (r,). 

Where  the  adion  is  transitory  (as  trespass  for  taking  goods)  the 
plaintiii'  is  foreclosed  to  pretend  a  riaht  to  tiie  place,  nor  can  it  be  con- 
tested upon  the  evidence  who  had  the  right  :  therefore  possession  is 
justifiable  enough  for  the  df  fendant,  and  it  is  suhicieiit  tor  him  to  plead 
that  he  was  possessed  of  Blnckacre,  and  that  be  took  the  goods  dam- 
age-feasant  without  shewing  title. — But  it  is  otheru  ise,  in  trespass 
(juare  clauswn /regit,  because  ihere  the  plaintiif  claims  the  close  and 
the  right  may  be  contested  {b). 

Trespass  for  taking  and  detaining  his  cattle  at  Trddiyigton  ;  the  de- 
fendant justified  taking  them  damage-feasani  at  Kingstoh.,  and  that  he 
carried  them  to  Tcddington  and  imi)oundeti  tJum  ihere.  It  Avas  ob- 
jected on  demurrer  that  Ihejsistification  was  local,  and  therefore  the  de- 
fendant ought  to  have  traversed  the  p^ace  in  thf.  dec^&ratisjn  :  scd  non 
aUoratur,  for  when  the  defendant  says  he  carriedtlitra  to  rcddington^ 
and  impounded  them  there,  they  agree  in  tlie  p!  ice  ;  for  if  the  defend- 
ant had  not  a  right  to  take  them,  he  was  a  trespasser  at  Tcddington  (r). 

Tiie  general  issue,  in  trespass,  is  "  not  guilty.'* 

In  trespass  quart  (iausum  fregit,  the  defendant  may,  upon  "  not 
guilty,"  give  in  evidf^rtce  that  he  had  a  lease  for  years,  {h.i  nut  that  he 
had  a  lease  at  will,  for  that  is  like  a  licence  which  may  be  countermand- 
ed at  pleasure),  or  that  his  servant  put  the  cattle  there  without  his  as- 
sent ;  but  he  cannot  give  in  evidence  a  right  of  common,  or  to  a  way, 
or  any  other  easement ;  nor  can  the  defendant  give  in  evidence  that 
the  plaintiii"  ought  to  repair  his  fences,  for  want  whereof  the  cattle  es- 
caped ;  nor  that  he  entered  to  take  his  emblements  or  cattle  ;  nor  that  he 
entered  in  aid  of  an  officer  for  execution  of  process,  or  in  fresh  pursuit 
of  a  felon,  or  to  remove  a  nuisance,  nor  that  it  was  the  freehold  of  A. 
and  that  he  entered  by  his  command  or  licence ;  for  these  are  all  mat- 
ters of  justification  only  {d). 

So,  the  defendant  cannot  give  in  evidence,  that  the  goods  were  seised 
as  a  heriot,  or  that  they  were  distrained  dama^e-feasant,  Sec.  (r). 

But  he  may  give  in  evidence,  or  plead,  that  he  was  tena!)t  in  com- 
mon with  the  plaintiii":  but  if  he  would  take  advantage  of  a  stranger 
being  so,  he  must  plead  it  in  abatement,  for  that  will  not  prove  him 
not  guilty.  So  if  there  be  two  defendants,  they  may  plead  a  tenancy 
in  common  in  one  of  them,  with  the  plaintiii  (y). 

(a)  Bull.  N.  P.  84.  (h)  Ibid.  89.  (c)  ibid.  90.  (rf)  Ibid.  (^  ll>'<' 

(/)  Ibid.  S-J.yi. 


Sect,  ir.]  ini'j;>t/(ir,  or  (Missire  Distns!^.  .til 

Iricaseofan  ulisolutcly  sfiiilcd  common  in  iioiiit  of  number,  one 
t  onnnoner  may  distrain  llic  supcrimintrtiry  cattle  of  anotiicr  :  l)ut  not 
if  any  admcasnrcmtnt  is  ncccsFury ;  as  where  Ihc  stint  lias  rclal ion  to 
tlic  quantity  of  common  land  (it). 

With  rcsp.ct  to  the  ph'a  ol'  t/ or  rum  tfiinucntinn,  and  lo  a  new  afsi-ijn- 
uicnt,  if  tlu-  defend. mt  s.iy  that  tne  torus  in  i/uo  is  six  acres  in  D.  wliich 
arc  his  frechohl,  and  the  plaint iil"  say  tii(;y  are  his  freehold,  anl  in 
truth  the  plaintiif  and  defcn  I  uit  have  l)olh  fix  acres  tli^;re,  the  de- 
fendant cannot  give  in  evidence,  that  lie  did  the  trespass  in  his  own 
soil,  unless  he  2;ive  a  name  certain  to  the  sijc  acres,  fur  otherwise  (says 
D^/rr,  23.  c.  1  ir.)  tiic  plaint  ill"  cannot  make  a  new  assignment  (/>). 

li  is  certain,  tiiat  where  the  action  is  transitory  (is  for  taking  the 
plaintili's  goods),  the  defendant,  if  he  woidd  plead  the  torus  l/i  'juo  to 
he  his  freehold,  and  that  he  took  the  goods  d  image-feasant,  njust  ascer- 
tain the  place  at  his  peril ;  because  by  his  plei  he  has  made  that  loral 
whic'i  was  at  large  before;  for  the  taking  of  the  goods  is  the  gist  of 
tlie  action,  and  therefore  the  plaititilf  may  prove  it  at  a  diilcrent  place 
from  tliat  iaitl  in  the  declaration  (r). 

Imiecd  it  should  seem  tlut  anciently,  upon  a  writ  of  f/uare  clnusum 
/r<ri,'-/7,  the  plaintiif  might,  and  may  still,  declare  either  generally,  for 
breaking  his  ciose  at  A.  or  might  name  the  close  in  his  count,  iis  for 
breaking  and  entering  his  close  called  Blu<knrrc  in  .4.  or  might  other- 
wise certainly  describe  the  same.  If  he  declared  generally,  and  the  de- 
fendant pleaded  the  general  issue,  the  plaintilf  might  give  evidence  of  a 
trespass  in  any  part  of  the  township  of  ./.  So  that,  for  the  advant.ii^e 
of  the  defendant,  and  to  enforce  the  plainliJito  ascertain  the  place  e.v- 
uctly,  a  method  was  devised  of  permitting  the  defendant  to  i)lead  what 
is  called  the  '•  common  bar,"  that  is,  to  name  any  place,  as  liroontfuld 
(true  or  false  was  immaterial)  in  J.  as  the  place  where  the  supposed 
trespass  happened,  and  then  allcdge  that  such  place  so  n  in)ed  uas  the 
defendant's  own  freehold  :  and  as  the  plainlill'  could  not  prove  a  tres- 
pass in  Jiroomfidd,  tliis  drove  him  to  a  new  assignment  of  the  torus  in 
i/no,  by  naming  the  place  in  certain,  as  a  close  called  L'la  karrr,  to 
which  the  defendant  was  now  to  plead  afresh  (r/). 

In  trespass,  the  defendant  justified  in  a  i)lice  called  .•/.  as  his  free- 
hold :  the  plaintiil,  by  way  of  new  assigmnent  said  that  the  place  in 
which,  ^lc.  is  called  /.'.  It  is  no  plea  to  say  that  J.  and  B.  are  the 
came  place,  for  by  the  new  assignment  the  bar  is  at  an  end  (  ). 

If  the  plaintilf  make  a  new  assignment,  and  the  general  is>ue  be 
joined  thereon,  the  plainlill'  cannot  prove  the  defendant  guilty  at  tiic 
place    mentioned   in  the  bar  :    for  when  the  plaintiiF  makc^  a  new 

ia)  1  ni.  n.  673.  (h)  Bull.  X.  P.  K.  <r)  IbM.  (i)  2  Bl.   U.  IWO 

r  1  U.  11     N    Y    93 


512  licmedies  for  an  unfoundedy  [Chap.  XIX. 

afsigmncnt  he  -waives  that  whereto  the  defendant  pleaded  in  har  ;  so 
as  in  truth  if  it  be  the  same  place,  he  can  never  take  advantage 
thereof,  and  therefore  if  it  be  the  same,  yet  the  defendant  ought  not 
to  rejoin  that  it  is  so,  but  plead  not  guilty  and  take  advantage  of  it  at 
the  trial  (a). 

A  man  is  not  obliged  to  justify  a  distress  for  the  cause  uhich  lie 
happens  to  assign  at  the  time  it  was  made.  If  he  can  shew  that  lie 
had  a  legal^ justification  for  nhat  he  did  that  is  sufficient.  A  man  may 
distrain  for  one  thing  and  avow  for  another  :  thus,  he  may  distrain  for 
rent  and  avow  for  heriot  service  (/>). 

On  a  justification  for  taking  cattle  damage-feasant,  if  it  appear 
that  the  party  distraining  had  not  actually  got  into  the  locus  in 
quo  before  the  cattle  had  got  out  of  it,  the  justification  cannot  be 
supported  (r). 

In  trespass  for  taking  and  driving  plaint  ill's  cattle,  to  which  thfrc 
^vas  a  justification,  that  defendant  was  lawfully  possessed  of  a  certain 
dose)  and  that  he  took  the  cattle  damage-feasant,  plaintiif  may  special- 
ly reply  title  in  another  by  whose  command  he  entered,  Src  and  it 
docs  riot  vitiate  the  replication  that  it  is  unnecessarily  proved,  and  far- 
ther to  give  Colour  to  the  defendant  (r/). 

For  as  trespass  is  a  possessory  action,  it  is  enough  for  the  plaintiH'in 
his  replication  to  traverse  the  title  set  out  by  the  defojdiinl,  without 
setting  up  a  title  in  himself;  for  the  possession  admitted  in  the  plea  in 
giving  colour  is  sufiicient  unless  tho  defendant  can  make  out  a  title  in 
himself. — But  if  in  trespass  for  taking  a  gelding  (or  other  chatlcl), 
the  defendant  pleads  thai  the  place  w  here  is  one  hundred  act? ?.  and 
that  J.  S.  is  seised  thereof  in  fee,  and  that  he  as  his  si  rvant  and  by 
hisex])ress  orders  took  the  gelding  (or  other  chattel)  damag^-ffrisant  ; 
the  plaintiiT  cannot  reply  de  injuria  sua  propria  nhsrj,  'tai'i  cause,  iior 
that  would  put  in  issue  three  or  four  things ;  but  he  must  traverse  one 
thing  in  particular  (r). 

If  the  defendant  plead  that  it  is  his  freehcld,  the  plaint  ill  may 
jfeply  three  ways:  1.  that  it  is  his  fretiiold,  and  then  he  must  always 
traverse  the  defendant's  plea,  except  in  one  case,  ano  that  is  v  here  he 
makes  a  new  assignment.  2.  Or  he  may  derive  a  titl-^  under  the  de- 
fendant, and  tlicnhe  must  not  deny  its  being  the  defendant's  f)ve;;.ild. 
3.  lie  may  set  up  a  title  not  incon^^istent  with  the  def  n.iant's,  and 
then  he  may  either  traverse  the  defendant's  titie,  or  not,  as  he 
pleases  (/). 

It  is  not  necessary  to  have  an  uiterfst  in  the  soil,  to  mainnin  Ues- 
\inss  fjvarc  clauswn  /regit,  but  an  interest  m  the  profits  Is  sufficient,  as 
he  ^\ho   has  prima  toiisura.     So,  if  /.  .S".  aj^rce  ^ith  the  owner  of 

in)  null.  N.  p.  92.  (i'  7T.  R    <;hl.  1  T.  U.  G46.  (r.)  1  Epp.N.P.  95. 

frf)  1  Esp.  R.  212.  (c)  Bull.  N.  P.  93.  (/)  Ibid.  94. 


iSt'Cl.  ll.J  trr€(*ulaf,  or  ixcessiir  Distnss.  r»l.'t 

Ihe  soil  to  plough  and  sow  the  t^roiiml,  ami  for  that  to  .qivc  liiin  half 
tlie  crop,  ./.  .v.  may  have  his  action  for  treading  down  the  corn,  as  the 
owner  is  not  jointly  conccrnrd  in  the  growing  com,  but  is  to  have  half 
after  it  is  reaped  hy  way  of  rent,  wliich  may  hr.  of  other  things  than 
money  :  though  in  Co.  Lit.  \V2.  it  is  said  it  cannot  he  of  tlie  profdB 
themselves  ;  but  that  (as  it  seems)  must  be  understood  of  the  natural 
profits  (</). 

i'he  plaintiir  may  prove  trespass  at  any  time  before  the  action 
brought,  though  it  be  before  or  after  the  day  laid  in  the  declara- 
tion. Hut  in  trespass  with  a  ronlinunndoy  the  plaintifl'  ought  to 
confine  himself  to  the  time  in  tlic  declaration;  yet  he  may  waivo 
tlic  continiiaiuln,  and  prove  a  trespass  on  any  day  before  tlic  action 
brought,  or  he  may  give  in  evidence  only  part  of  tlie  time  in  the 
continuundo  (A). 

The  plainliif  can  only  prove  the  taking  such  goods  as  arc  mcntionccl 
in  the  ileclaration  ;  because  a  recovery  in  the  action  could  not  be 
pleaded  in  bar  to  any  otlier  action  brought  for  taking  otlier  goods  than 
those  specified  in  the  declaration.  Therefore,  where  the  declaration 
was  for  entering  the  plainliii's  house,  and  taking  divcrsa  bona  ft  cntalla 
ipsius  f/ucrrntis  ibidem  invcnta^  after  verdict  for  the  plaintiiT  the  judg- 
ment was  arrested  (r). 

By  stat.  2i  J.  1.  c.  IG.  the  defendant  may  to  trespass  yi/nrc  claustin: 
frr^*',  plead  a  disclaimer,  and  that  the  trespass  was  by  negligence  or 
involuntary,  and  tender  of  sullicient  amends  before  the  action  brought ; 
whereupon,  or  upon  some  of  tliem  the  plaintill  shall  be  forced  to  join 
issue:  and  if  the  said  issue  be  founil  for  the  defendant,  or  the  plaintill' 
shad  \v:  nonsuited,  the  plaintidshall  be  clearly  barred  from  the  said 
action,  and  all  other  suits  concernin;^  the  same. 

Though  the  verdict  do  not  agree  with  the  pica  in  the  manner  and 
nature  of  the  tenure,  yet  if  it  agrees  in  substance  in  the  point  for 
which  the  distress  was  made,  that  is  snlhcient  ;  for  there  is  a  diJlercnce 
between  trespass  and  replevin,  for  in  replevin  it  behoves  the  avowant 
to  make  a  good  title  in  omnibus  (d). 

Thus  in  trespass  for  breaking  aud  entering  tlie  plaintifi"'s  house  and 
taking  his  goods,  the  defendant  pleaded,  that  the  hou^e  is  parcel  of  a 
hd!  y  ird  holden  of  /.  by  lioma;;e,  fealty,  tscuagc,  uncertain  suit  of 
Court,  enclosing  his  pirk  with  pales,  and  rent  of  a  pound  of  comyn, 
and  for  three  years'  arrear,  and  for  homage  and  fealty  of  the  tenant, 
he  by  .^.'s  command  entered  and  took,  Slc.  the  defendant  traversed  the 
tenure  modo  et  Jonna.  Special  verdict  that  he  held  of  y/.  l»y  homage, 
feaity,  enclosing  his  park ;  rent  of  a  pound  of  comyn,  </  non  alitcr^  and 
judgment  for  the  defendant  (r ). 


514  Remedies  for  an  unfoundedy  [Chap.  XIX. 

In  trespass  for  taking  the  plaintiiT's  cattle,  justification  that  they 
were  damage  feasant  in  the  delcndant's  close  is  sufficient  without  set- 
ting- forth  a  title  (a). 

If  trespass  for  taking  ari  selling  the  plaintiff's  goods  be  brought 
against  two  persons,  and  i\\t  one  suffers  jut.-gment  to  go  by  default, 
and  the  other  justifies  ^Ar^r/ving*  on  a  distress  for  rent,  by  command  of 
bis  co-df:fen;!antj  and  tht  selnns^  I  y  the  licence  of  the  plaintiff,  and 
issue  be  taken  on  fiie  Kcenct  and  found  for  the  defendant,  the  judg- 
ment suilered  by  default  shall  be  arrested  ;  for  the  case  of  a  licence 
cannot  be  disangnivhcd  from  a  gift  of  goods,  or  a  release,  Avhich 
destroys  the  cause  of  action  as  to  ail  the  defendants  {b). 

Trover  for  an  irregular  Distress. 


Trover  also  lies  for  a  distress  illegally  taken  ;  as  where  a  right  to 
distrain  exists,  but  the  distrainer  ('\here  the  distress  is  for  rent)  takes 
such  goods  as  are  not  lawfully  the  subjects  of  a  distress ;  as  wearing 
apparel  in  use,  See. 

For  where  cattle  or  goods  are  wrongfully  taken  and  detained,  the 
party  may  bring  trespass  vi  et  arinis,  replevin,  trover,  or  detinue  ;  or 
if  they  are  converted  into  money,  he  may  waive  the  tort,  and  bring 
assvmpsit  for  money  had  and  received  :  biit  the  plaintiff  having  once 
made  his  election,  cannot  afterwards  iuing  another  action  for  the 
same  cause,  either  whilst  tne  former  is  depending,  or  after  it  has  been 
determined  (r). 

If  therefore  a  party  pay  money  in  order  to  redeem  his  goods 
from  a  wrongful  distress  for  rent  (;'r  any  other  supposed  ground 
of  distress,  it  is  presumed,)  he  may  luainldin  trover  against  the  wrong- 
doer (f/). 

In  order  to  maintain  trover  the  plaintiff'  must  have  a  right  of  pro- 
perty in  the  thin^,,  and  a  right  of  potfession  ;  and  unless  both  these 
things  concur,  the  action  will  not  lie. — Therefore  where  goods 
leased,  as  furniture  with  a  house,  have  been  wrongfully  taken  in  exe- 
cution by  the  sheriff,  the  ianulord  cannot  maintain  trover  against  the 
sheriff  (t ), 

For  trover  is  a  sp'^cial  action  on  the  case,  which  one  man  may  have 
against  anothi-r,  \\  ho  hath  in  his  possession  any  <A  nis  goods  by  delivery, 
finding,  or  othenviacy  or  s;;i:S  or  makes  \\s:  <ff  them  without  his  consent, 
or  refuses  to  deliver  tuem  fin  (h;mand  ;  aul  it  is  for  rcovery  of  damages 
to  the  vaiue  of  the  goods  ;  and  therefore  a  declaration  ougiit  to  contain 

fa)  10  MoJ.  37.  (6;  8  .Mod.  217.     2   I.<J.  Raym.  1^72.  s.  c.   1  Str.  610.  3.  C 

(c)  I  Tidda  met.  10.  (dj  6  T.  R.  2Ja.  («;  7  T,  K.  9. 


J^tct.  II.]  irremdar,  or  excessive  Distress.  iil^ 

convenient  c«rlainly  in  the  thscription  of  tlic  thinq;>,  so  tliat  the  jury 
fljiiy  ktiiu  what  is  meant  thercliy  (^<i). 

The  C()n\<rsii>n  is  the  ;;ist  of  ll>c  action,  and  tlie  manner  in  which 
the  ijoods  came  to  the  han<lsof  the  (lel«  ndant  is  only  imlnrement ; 
and  therefore  t!ie  pluintiil'  jnay  declare  upon  ix  dry  nr  nmf  ad  manvr 
generally,  or  specially /;<t  invtiUiouem^  (th(»ii-h  thr  d.fcndant  came  to 
the  goods  by  delivery,)  for  hein;;  hut  inducement,  such  tv'ed  not  l)C 
proved  ;  hut  it  is  suHicie.nt  to  ])rove  property  in  iiimself,  pf)sscsj>ion  to 
have  hcen  in  the  defendant,  and  a  conversion  by  him.  So,  tiic  de- 
claration was  holden  to  be  good,  tlionj^li  tlie  conversion  was  laid  to  be 
on  a  ilay  before  the  trover,  for  i\iv postca  coiivcrtit  is  sufficient,  and  tlie 
viz.  void  (''). 

The  distinction  between  the  actions  of  trespass  and  trover  i?  well 
settJed  ;  the  fornter  is  founded  on  possession,  the  latter  t n  pr';perly  :  a 
special  \tropcrty  is  sullicient  inorder  toenalde  the  party  to  bnn:,' tiovrr; 
aiid  even  property  is  suihcient  without  possession  (r). 

To  support  an  action  of  trover,  Ihiic  niuht  be  a  positive  torliou<? 
act  (J). 

'Irover  being  founded  on  a  tort,  "  not  guilty"  is  the  general  issue. 
A  release  also  may  be  pleaded  specially,  and  it  seems  is  the  only  special 
plea  in  this  action.  But  as  the  def'^ndant  cannot  plead  the  special 
matter,  ho  may  give  it  in  evidence  on  the  general  issue  (^ ). 

>Vhere  the  goods  are  cumbrous,  instead  of  allowing  thcni  to  fie 
brought  into  Court,  the  Court  w  ill  ^rant  a  rule  to  shew  cause,  why  on 
the  delivery  of  the  goods  to  the  plaintiil  and  paying  costs,  proceedings 
should  not  be  staid  (/). 

Trespass  for  an  irregular  Distress, 

Trespass  will  also  lie  for  any  irregularity  in  making  the  distress  or  in 
the  subsequent  disposition  of  it,  or  con  luct  respecting  it. 

Therefore,  trespass  Mrs  agaiu'^t  a  landlord,  who,  on  niaking  a  di'^tr'^ss 
for  rent,  turned  plaintiil's  fiimily  out  of  possession,  and  kept  the  premi- 
ses on  which  he  had  impounded  the  distress  (l^). 

But  respiting  a  distress  for  rent,  l>y  stat.  II  ^.  2.  r.  1'.).  a  fli'trrss 
for  rent  shall  not  be  deemed  unlawfid  for  any  irregularity  in  tli  d.is- 
position  of  it  afterward,  nor  the  party  making  it  a  trespasser  a/t  initio: 
but  the  party  agt^rievcd  may  recover  full  satisfiction  r»r  tlje  sp'-cial 
damai^o  he  shall  have  sustained  therel>y,  and  no  more,  in  an  action 
of  trespass  or  on  the  case,  unless  tender  of  amends  i.<.vc  been  before 
made.  s.  19. 

(ni  null   N.  P.  32  ih)  M.i.l  SI  fO  *  ~   H    48X     I'.iM.  V   P.  :C». 

fi}  ;>  Uoi    y  V\i\    439  r*j  BjI!    N.  P   *»■  </)  ibid  19  (f^  1  i«»t  R   !:<• 


516  Remedies  for  an  unfoundedy  SCc.        [Chap.  XIX. 

Trover  therefore  wiil  not  lie  in  such  case  (a). 

Trespass  w  ill  not  lie  on  an  irregular  distress,  when  the  irregularity 
complained  of  is  not  in  itself  an  action  of  trespass,  but  consists  merely 
in  the  omission  of  some  of  the  forms  required  in  conducting  the  dis- 
tress, such  as  procuring  goods  to  be  appraised  before  they  are  sold ; 
the  true  construction  of  the  provision,  in  11  G.  2.  c.  19.  s.  19.  that  the 
party  may  recover  a  compensation  for  the  special  damage  he  sustains  by 
an  irregular  distress  in  an  action  of  trespass,  or  on  the  case,  is  that  he 
must  bring  trespass  if  the  irregularity  be  in  the  nature  of  an  act  of  tres- 
pass ;  and  case  if  it  be  in  itself  the  subject-matter  of  an  action  on  the 
case  (b). 

Action  on  the  Case  for  an  excessive  Distress, 

As  to  an  excess  of  a  distress  taken,  an  action  on  the  case  lies  for  that 
on  the  statute  of  Mar  lb  ridge,  52  H.  c.  1.  but  that  will  not  warrant  an 
action  of  trespass  (r). 

Xhus  in  trespass  for  breaking  and  entering  his  house,  and  taking  an 
excessive  distress,  after  judgment  by  default,  it  was  holden,  on  error 
brought,  that  trespass  would  not  lie,  for  the  entry  was  lawful,  and 
there  is  nothing  subsequent  to  make  it  a  trespass,  as  there  is  when  the 
distress  is  abused.  At  common  law,  the  party  might  take  a  distress  of 
more  value  than  the  rent,  therefore  that  did  not  make  him  a  trespasser 
ah  initio,  but  the  remedy  ought  to  be  by  a  special  action  founded  upoH 
the  statute  of  Marlbridge  {d). 

io)  1 H.  Bl,  R.  13.  (6)  2  Campb.  115.  (c)  7  T.  R.  653.  (^i)  Bull.  N.  P.  [81] 


[517  ] 


CHAlTF.ll  XX. 


Of  the  B( medics  for  Tenants  against  Landlords 
(continued). 


Of  the  Tcnanf\s  Remedies  hy  Action  of  Covenant  or  Assump- 
sit, according  as  the  Lease  is  by  Deed  or  without  Deed. 

IF  the  landlord  commit  a  breach  of  covenant,  if  the  h'a?e  be  ])y 
tleed,  or  violate  his  contract  if  the  lease  be  by  writing  without  deed, 
or  by  parol  agreement,  the  tenant  may  in  the  one  case  sue  him  for 
damages  in  an  action  of  covenant,  and  in  the  other  in  that  of  as* 
sumpsit. 

A  breach  of  covenant  need  not  be  assigned  in  express  words:  it  is 
sufUcient  if  it  be  a  direct  aHirmativc,  and  certain  to  a  general  in- 
tent (((). 

Therefore,  on  a  covenant  that  the  defendant  had  a  right  to  let  for 
the  term,  a  l)reach  assigneii  generally  that  he  had  not  a  right  to  let  is 
good  ;  for  the  covenant  being  general,  the  breach  may  l)e  assigned  as 
general  as  the  covenant,  and  it  lies  not  in  the  plaintiiT's  notice  who 
had  the  rightful  estate  ;  but  the  defendant  ought  to  have  maintained, 
that  he  was  seised  in  fee,  and  had  a  good  estate  to  ilcmise,  anil  then 
the  plaintiir  ought  to  have  shewn  a  special  title  in  some  other  ;  but 
prima  facie  the  count  is  good,  the  covenant  being  general,  to  assign  a 
general  breach  (/•). 

So  in  assigning  a  breach  of  covenant  that  was  for  quiet  enjoyment, 
it  was  held  to  be  suflicient  tliat  at  that  lime  of  the  demise  to  the  plain- 
tiir, J.  hud  lawful  rigid  and  title  to  the  premises,  and  havini^  such 
lawful  right  and  title  entered,  \c.  and  evicted  liim,  i^c.  without  sliew. 
ing  what  title  A.  had  ;  or  that  he  evicted  the  plaint iJl'  by  legal 
process,  «<J-r.  Alkdging  that  "  the  party  having  a  lawfdl  riglit  and 
title,  entered,"  is  equivalent  to  saying  "  he  entered  by  lawful  right 
and  title"  (r). 

(a)  Cm  Jbc.  3.^3.  4  T  U.  C21  (ft)  Cro.  Ji-    ''Oi    coot   ncn  b    !  .Mod.  65 

.'1  Cro.  F.)i7..  :i;i.   I  Mod    I'tl.  4  T.  R.  r.si    8T    H.aTrt 

fir 


518  Of  the  Tenant's  Remedies,  [Chap.  XX. 

So  also,  if  a  covenant  l)e  against  the  act  of  any  particular  person, 
interruption  assigned  as  a  breach  is  good,  ^vithout  shewing  by  Avhat 
title  (.0. 

So,  if  a  lessor  covenant  for  quiet  enjoyment  against  the  latvful  let, 
suit,  entry,  ^-c.  of  himself,  his  heirs,  and  assigns,  the  declaration  for 
a  breach  of  the  covenant  need  not  expressly  alledge  that  he  entered 
claiming  title,  if  the  disturbance  complained  of  is  such  as  clearly  ap- 
pears to  be  an  assertion  of  right  (/<).  « 

On  a  covenant  that  .4.  and  his  w  ife  shall  enjoy,  &:c.  a  breach  that  A. 
was  ousted  is  sufficient  (r). 

Iio^^ever,  to  establish  a  breach  of  covenant  for  quiet  enjoyment 
ivithout  incumbrance  from  any  person,  the  plaintiff  must  shew  a  law- 
ful incumbrance  (d). 

A  condition  that  the  lessee  shall  not  molest,  vex,  &c.  any  copy- 
holder, is  not  brokt-n  by  any  entry  on  the  premises  vi  et  armis  to  beat 
him,  if  he  do  not  oust  him  from  his  copyhold  (e). 

,A  covenant  in  a  lease,  that  the  lessee  should  quietly  enjoy  the  estate 
discharged  from  tithes,  is  broken  by  a  suit  for  them  after  the  expiration 
of  the  term  (/)• 

But  v\  here  in  covenant  for  quiet  enjoyment  the  breach  assigned  was, 
*'  that  the  defendant  had  ex  ibited  a  bill  in  Chancery  against  him  for 
ploughing  meadow,  and  obtaiiied  an  injunction,  w  hich  had  been  dis- 
solved wiih  20s.  costs;  on  demurrer,  this  was  held  to  be  no  breach  of 
covenant,  for  the  covenant  was  for  quiet  enjoyment,  and  this  was  a  suit 
for  waste  ((f). 

The  seller  covenants  to  the  purchaser  of  an  estate  that  heslial!  enjoy 
and  receive  the  rents,  A-c.  without  any  action,  A  r.  or  interruption  by 
the  seller  or  those  claiming  from  him,  or  "  by,  through,  or  with  his,  or 
their  acts  ;"  this  means  default.  Thereiore,  u  breach  was  holden  to  be 
■w  ell  assigned  in  respect  of  certain  quit-rents  in  arrear  before  and  at  the 
time  of  the  conveyance,  though  not  stated  to  have  accrued  while  the 
seller  was  tenant  of  the  premises  (/>). 

But  to  covenant  for  enjoyment  free  from  arrears,  plea  that  the  de- 
fendant delivered  money  to  the  plaintilT,  ^\ith  intention  for  him  to  pay 
it  over  to  the  lessor,  is  good  (/). 

A  covenant  to  surrender  a  copyhold  to  a  purchaser,  and  to  make  and 
do  all  acts,  deeds,  (^r.  for  the  perfect  surrender  and  assurance  of  the 
premises  at  the  costs  and  charges  of  the  seller,  is  not  broken  by  the 
non-payment  of  the  fine  to  the  lord  on  the  admission  of  the  purchaser  ; 
for  the  title  is  perfected  by  the  admittance  of  the  tenant,  and  the  fine 
is  not  due  till  after  the  admittance  (A). 

(a)  Cro.  Eliz.  213.  (b)   I   T.  K.  671.  (c)Cto.  Jac  383.  ((fi  Ibid.  425. 

f<)Ibid.  421    Cro  Eliz.   9U.  916.  (/J  Ibid.   316.  [g)  2  Vent.  215. 

(*)  3  East's  R.  431.  (i;  1  Mod  243.  (k)  I  East's  R.  632.  2  T.  R.  484. 


by  Arlion  of  Coicnant  or  Ahsunijv-it.  .01!) 

In  arfion  at^ainst  executors  in  Ihrir  own  rit^ht  on  a  covenant  for 
^'  good  title  and  qiiet  enjoyment  ai;;iinst  any  i)er<on  or  pi-rsons  wliatso- 
cver,"  contained  in  an  assijinnunt  of  a  lease  of  the  testator  hy  uay  of 
niortt^aje,  the  declaration  must  fcheu  a  breach  I)y  some  act  of  the  cove- 
nantors (^(t). 

Covenatit  hy  a  lessee  au^ainst  liis  lessor,  and  hrcarh  asfii:rned  on  the 
covenant  for  quiet  enjoyment,  lor  that  the  lessor  ousted  him:  the  tlc- 
fcndant  pleaded  that  lie  entered  to  distrain  for  rent,  and  traversed  that 
he  ousted  him  r/c'  pnciniss/s  ;  the  plaintiil'  demurred,  for  that  he  did 
not  traverse  that  he  ousted  him  dc  /jnn/j/ii/i  or  any  part  thereof.  Scd 
per  Curiam,  i\\c  plea  is  ,u:ood,  and  proof  of  any  part,  liad  thcplainlilV 
",oined  issue,  woidd  have  been  suliicient  (>). 

Where  a  covenant  is  founded  on  a  conveyance  of  an  estate  which 
proves  to  I)e  voiil,  the  covenant  is  void  also. 

Thus,  where  the  conveyance  was  "  a  grant  of  so  much  of  a  term  as 
should  be  unexpired  at  the  death  of  //."  and  covenant  f)r  quiet  enjoy- 
ment, and  bond  for  performance  of  covenants :  this  conveyance  being 
void,  on  accoinit  of  the  uncertainty  of  the  time  when  the  term  was  to 
conuuencc  and  end  [Co.  Lit.  l-oG.j  the  covenants  were  adjudged  to  be 
void  as  they  depended  on  the  estate  (r ). 

But  tliouuh  a  lease  be  void,  covenant  lies  in  certain  cases  for  a  l)rcach 
of  covenant  before  the  lease  becanic  void. 

Thus,  upon  the  stat.  i:i  Eliz.  c.  20.  C^itice  repealed)  of  Ica-^es  made 
by  parsons,  that  upon  non-residency  for  eii^lity  days  the  lease  shall  be 
void,  yet  it  was  adjudged,  that  where  a  parson  made  such  a  lease  by- 
indenture,  in  which  were  divers  covenants  on  the  le-see's  part,  and  af- 
ter 1  lie  leasa,  &.c.  became  void  by  non-residency,  v^c.  for  a  covenant 
broken  before,  an  action  of  covenant  lay  {d). 

'n)  1  n.  BI.  n.  81.  (h)  I  Sslk.  250.  Bui.  N.  V.  HOI. 

M  Sir.  T.  Itiym.  27.  3  T.  R.  tnS.  (J)  Cro.  Elit  78. 


[  520  ] 


CHAPTER  XXI. 


Of  the  Remedies  for  Tenants  against  third  Persons. 


Section  I.      Of  Distress  for  Damage- Feasant  and   JRes- 

cous. 

Section  IL      Of    Trespass  for  immediate   Injuries  to  his 

Possession ;  and  Case  J  or  consequen- 
tial ones. 


Section  I.     Of  Distress  for  Damage-Feasant,    and  Res- 

cous. 

IF  the  inclosures,  Sac.  of  the  tenant  be  broken  down,  or  his  land 
injured  by  the  cattle,  &c.  of  another  person,  he  may  either  brin^j  an 
action  of  trespass  for  the  damage  done,  or  he  may  take  the  cattle. 
See.  as  a  distress- feasant ;  for  the  party  has  his  election  of  the  two  re- 
medies ;  but  using  one  of  them  is  an  utter  Avaiver  of  the  other,  as  the 
election  of  one  cannot  but  be  considered  to  be  an  implied  rejection  of 
the  other  ;  beside  that  nemo  debet  bis  vexari  pro  eadem  causa :  a  dis- 
tress, therefore,  taken  damage-feasant,  as  long  as  it  is  detained,  is  a 
good  bar  to  trespass  («). 

If  a  beast  has  done  more  damage  than  he  is  worth,  let  the  injured 
party  not  distrain,  but  rather  take  his  action  [b). 

This  ground  of  distress  is  upon  the  principle  of  the  law  of  recom- 
pence,  which  justifies  the  party  in  retaining  that  which  occasions  an 
injury  to  his  property,  till  amends  be  made  by  the  owner. 

Damage-feasant,  however,  is  the  strictest  distress  that  is ;  for  the 
thing  distrained  must  be  taken  in  the  very  act,  for  if  they  are  once  off, 
though  on  fresh  pursuit,  you  cannot  distrain  them  ;  this  diversity  ex- 
isting between  distress  for  rent  and  damage-feasant,  that  one  may  dis- 
train any  cattle  he  finds  on  the  premises  for  rent,  but  in  the  other  case 

(«)  12  Mod.  6C3.  i,b)  Ibid.  661. 


.Sect.  I.J         Of  Distress  for  ])amnu;t- Feasant,  \'(.         rrli 

tlicy  must  he  actually  doini;  tlania^r,  and  an;  only  distraiiiulile  fur  the 
jluiiiai^c  tiiey  arc  llitii  doling  ami  coiitiiuiiriic  ;  for  if  tluy  havt;  done 
damage  to-day  and  goue  otf,  and  come  again  at  another  time  and  arc 
doiiiL^  (laniai^c,  ami  arc  taken  for  that,  and  the  ownrr  tender  amends 
for  that  damage,  the  party  cannot  justify  kce|)in^'  them  for  the  iirst 
damage  (<i). 

IMoreovcr,  if  ten  head  of  cattle  arc  doing  damage,  one  cannot  take 
one  of  them  and  keep  it  for  the  whole  damage,  hut  may  bring  trespass 
for  the  rest  (^). 

For  damage- feasant  one  may  distrain  in  the  night,  otlicrwise  it  may 
be  the  l)east.s  will  l)c  gone  before  he  can  tal;c  them  ;  in  wliich  respect, 
this  distress  diifers  from  that  for  rent,  or  rent-service,  which  must  be  in 
the  day-time  (< ). 

If  the  distress  l)e  stolen  or  set  at  large  by  a  stranger,  tlie  distrainer 
shall  not  be  answerable  for  it ;  but  if  in  that  case  replevin  be  brought 
and  an  clonqntvr  returned,  as  there  must  be,  there  shall  be  a  withernam, 
and  the  distrainer  is  liable  till  he  shew  the  matter,  which,  being  no  de- 
fault of  his,  will  excuse  him  (</). 

If  tender  be  made  of  damages  before  the  taking,  the  taking  is  un- 
lawful ;  if  after  the  taking  and  before  impounding,  then  the  detainer 
after  is  unlaw  ful ;  but  tender  comes  loo  late  after  tlic  impounding  to 
make  either  the  taking  or  detainint^  unlawful  :  still,  liowever,  after  the 
impounding,  the  distrainer  may  takti  the  amends  and  let  go  the  distress 
if  he  please. 

If  a  distress  damage-feasant  escape,  or  die,  without  any  neglect  of 
the  tlistrainer,  he  may  have  an  action  of  trespass  against  the  owner. 

In  trespass  <jitarc  clausumf regit ^  the  defendant  plcailed,that  the  plain- 
tilf  tlistrained  liis  hog  damage-feasant  for  the  same  trespass ;  the  plain- 
tiif  replied,  that  the  hog  escaped  w  ithout  liis  consent,  and  that  lie  was 
not  satisfied  for  the  damage  :  on  demurrer,  it  was  holden,  that  the  ac- 
tion would  not  lie,  though  it  was  admitted  that  if  the  distress  !iad  died, 
th«;  action  would  revive  ;  but  the  escape  (unless  the  contrary  be  shewn) 
was  the  fault  of  the  plaintiil"  (t ). 

Of  Rtsi'ous. 

Resrous  is  where  the  owner  or  otlicr  person  take.-?  away  by  force  a 
thing  distrained  from  the  person  distraining ;  but  the  person  must  be 
actually  in  possession  of  the  thing,  or  else  it  is  no  rescous ;  as  if  a  man 
come  to  make  a  distress,  anri  he  be  disturbed  to  do  it  :  but  the  party 
may  bring  an  action  on  the  case  for  this  disturbance  (/). 

(o)   la  .Mod.l.  661.  (6>  \h\<\.  ic)  Ct.  I.U.  i«2.  (4)  I  Mod.  000. 

it)  Bull.  jr.  P.  84.  (/)  Ibid. 


2  Of  Trespass  for  immediate  Injuries     [Chap.  XXI. 

The  plaintiff  ought  to  count  for  what  rent  or  services  he  took  the 
distress,  and  the  defendant  may  traverse  the  teniire  (a). 

If  a  man  send  his  servant  to  distrain  for  rent,  A'-c.  and  rescous  be 
made,  the  master  shall  have  the  writ,  and  he  may  join  in  the  writ  for 
assault  and  battery  of  the  servant ;  for  both  are  torts.  The  joinder  of 
action  depends  on  the  form  of  the  action  :  for  wherever  the  same  plea 
may  be  pleaded,  and  the  same  judgment  given  on  two  counts,  they  may 
be  joined  in  the  sanie  declaration  (^). 

If  the  defendant  plead  "  not  guilty,"  which  is  the  general  issue,  he 
cannot  give  in  evidence  non-te?mre  of  the  plaintiff  who  distrained  for 
rent,  but  he  ought  to  plead  it  (r). 

But  this  action  is  rarely  brought  at  this  day,  but  a  special  action  on 
the  case  in  which  non-tenure  may  be  given  in  evidence  on  the  general 
issue  (<i). 

Fide  ante  touching  stat.  2  IF.  Sc  M.  c.  5.  s.  4.  <?-c. 

In  an  action  on  the  case  for  the  rescue  of  a  distress  intended  for  sale, 
the  plaintiff  need  not  state  that  he  gave  notice  of  the  distress ;  nor,  if 
the  rent  became  due  upon  a  lease  for  years,  need  he  aver  occupation: 
for  upon  a  lease  for  years  the  rent  is  payai)le  though  the  lessee  never 
occupies ;  contra  of  a  lease  at  will.  Nor,  though  the  rent  was  payable 
only  during  occupation,  need  he  shew  any  thing  more  than  the  lessee's 
entry  {e). 

The  venue  may  come  from  the  will  where  the  rescue  was,  with- 
out joining  either  the  Mill  where  the  demise  was  made,  or  the  distress 
taken  (/). 


♦?.$« 


Section   II.     Of  Trespass  for   immediate   Injuries    to    the 
Tenant's  Possession. 

Where  the  immediate  act  itself  occasions  a  prejudice,  or  is  an  injury 
to  the  house,  land,(^v.  of  another,  trespass  vi  et  armis  will  lie  [g). 

This  is  a  possessory  action  ;  therefore,  whoever  is  in  possession 
may  maintain  an  action  of  trespass  against  a  wrong-doer  to  his  pos- 
session {h). 

Therefore,  where  a  party  beirjg  entitled  under  a  lease  from  the  Crown 
tQ  the  sole  right  of  digsi;ing  lead  in  a  certain  district,  to  the  soil  of  which 
she  had  no  right,  let  to  the  plaintiff  all  her  right  so  to  dig  during  her 
term :  upon  his  bringing  trespass  on  the  case  against  the  defendant  for 

{a)  Bull,  N.  P.  84.  (6)  Ibid.  1  T.  R.  276.  (e)  Bull.  N.  P.  62. 

<d)  Ibid.  (c)  1  I,d.  Uayra.  170.  (/)  Ibid.  (£)  Ibid.  73. 

{h)  Cro.  Jac.  123.    3  Bur.  R.  U63. 


S(  (  t,  II.]  to   the  TiiKtnCs  Possession.  .,-jj 

takini::  llie  lead,  it  was  Iicid  that,  hfiiii::  iti  j)()?.sc«sinn,  he  slioulj  !iave 
brouglit  trespass  v'nt  armis  ;  \vhcicforc  lie  was  nonsuit' d  {a). 

So,  trespass  vi  et  armis  lies  for  one  who  has  the  profits  of  the  soil, 
Ihotigh  not  t!ie  soil  itself  ;  as  /it  rtxtr^ium  futsd/rny  A'*r.  (A). 

It  lies  against  a  uTonj;-doer,  even  thotigli  the  tenant's  pofsc.'-jvn  i>c 
void. 

'rhercforf',  one  in  possession  of  £^lcl)e  land  under  a  lease  void  by  stat. 
13  J\liz.  c.  20.  by  reason  of  the  rector's  non  residence,  may  yet  main- 
tain trespass  upon  jiis  possession  against  a  wrong.docr  (r). 

Notr.  Where  there  is  a  demise  of  premises,  and  an  entire  rent  re- 
served, if  any  part  of  the  prcniites  could  not  be  legally  dtnu'scd,  the 
whole  deujisc  is  void  (r/). 

As  trespass  is  a  possessory  action,  and  possession  is  sufficient  to  maiw- 
tain  it  against  a  stranger,  no  special  titic  need  be  made  (r). 

In  trespass,  the  plaintiif  need  only  fulsily  the  defendant's  tillr  ;  fir 
tlie  di.fcndant's  title  Ixincr  out  of  the  case,  it  then  stands  upon  the 
plaintiif'f  possession,  which  is  ebou«^h  against  a  wrong-doer  ;  and  the 
plaint  ill"  need  not  rej)ly  a  title  (  /'). 

Trespa^-s  was  brou- lit  f  )r  breaking  and  entering  the  plaintilf's  liousc, 
and  beating,  abusing,  and  ill-treating  him  :  plea  not  guilty.  The  de- 
fence was, that  the  pliintilf  beinga  puiper  had  many  years  l)cfore  been 
placed  by  the  parish  ollicers  of  that  time  in  the  house,  MJiere  the  de- 
fendants, seven  in  nnmlier,  committed  t'.c  trespass,  and  that  the  de- 
fendants as  parisli  ollicers  came  to  the  house  to  remove  the  plaintiiT 
and  his  family  to  another  house,  that  t!ie  jilaintilf  refused  to  quit  and 
fastened  his  house  against  them,  and  tiiat  they  in  const  qnence  broke 
open  the  house  and  by  violence  dispossessed  the  plaintiJfand  his  family. 
Plu»icr  (or  ihf  piaintiff  objected,  tliat  under  the  pica  of  "not  j^uiltv,'* 
the  defendants  were  not  at  ii!)erty  to  enter  into  evidence  of  this  kind  l)y 
way  of  justification.  Kut  Lr  Bliinr,  J.  wajj  clearly  of  opinion  that  the 
defendants  might,  imder  not  giiiity,  i;ive  evidence  of  Hbrrum  fcncnlrn- 
tu»i,  and  that  if  the  plaintilf  had  been  put  into  the  house  by  the  parish, 
he  could  by  no  length  of  possession  whatever  acquire  any  title,  but 
might  at  any  time  be  turned  out  of  possession  by  the  parish  ollicers  ; 
anil  if  he  resisted,  force  might  lawfully  be  used  to  dispossess  him  ;  that 
the  evidence  oilered,  therefore,  amounted  to  liinruvi  tcncnicnfmn,  and 
that  it  would  be  a  question  fur  the  jury  to  decide,  wliether  any  unneces- 
sary violence  had  been  used  in  accomplishing  a  legal  object,  and  to  w  hat 
damages,  if  any,  the  plaintiif  was  entitled.  It  being  juoved  that  great 
and  unnecessary  violence  had  been  used,  the  jury,  on  that  grouud  only. 

(a)  Cm  Jic    I2n   3  Bur  U.  Ii*!3.  1  Ixl.  Rivm  CfH  (A)  3Bur  R   Ifi: 

(«)  I  r.Wi  H.  313.  (J)  3  E«f   H    ■ 

<■/>  i  Mr.  litB. 


524         Of  Trespass  for  immediate  Injuries       [Chap.  XIX, 

found  a  verdict  for  the  plaintiff  for  ¥ys.Dauncey  and  Benyon  for  the  de- 
fendants (a). 

At  the  assizes  at  Hereford  on  this  circuit,  the  same  question  carae 
before  Lawrence  J.  in  Worthington  v.  Baister,  and  received  a  similar 
determination.  This  was  an  action  of  trespass  for  breaking  and  enter- 
ing the  plaintiff's  house,  and  disquieting  him  in  the  possession  thereof. 
&c.  On  the  evidence  it  appeared,  that  the  house,  more  than  twenty- 
years  ago,  had  been  .built  on  a  piece  of  waste  ground  at  the  expense  of 
the  parish  for  the  plaintiff  ;  that  the  plaintiff  had  ever  since  occupied  it 
■with  his  family,  paying  no  rent  to  the  parish  or  making  any  other  acknow- 
ledgment ;  that  lately  the  parish  officers  had  made  claim  to  the  pre- 
mises and  put  another  family  into  the  house  to  occupy  it  jointly  with 
the  plaintiff,  in  doing  which  they  had  committed  what  the  plaintiff  de- 
clared on  as  a  trespass.  Laurence  J.  very  early  in  the  cause,  delivered 
it  as  his  clear  opinon,  that  if  the  house  was  originally  built  by  the 
parish,  and  the  plaintiff  put  into  it  by  them,  no  length  of  time  would 
turn  his  possession  into  a  title  against  the  parish  ;  that  he  could  only 
be  considered  as  a  mere  tenant  at  will,  and  that  of  course  his  right  of 
possession  ceased  with  the  determination  of  that  will. — Upon  this  opi- 
nion of  the  Judge*s  being  given,  the  point  contended  between  the  coun- 
sel on  both  sides  was,  at  whose  expense  the  house  was  originally  built, 
and  on  its  being  proved  that  the  house  was  erected  at  the  costs  of  the 
parish  the  plaintiff  was  immediately  nonsuited.  Daunceij  for  the  plain- 
tiff, Williams^  Serjeant,  for  the  defendant. 

A  lease  Mas  made  of  a  farm,  and  also  of  certain  allotments  of  com- 
mon, enclosed  under  an  Act  that  contained  the  usual  clause  empower- 
ing the  commissioners  to  distrain  or  enter,  and  take  the  rents  and  profits 
in  failure  of  the  owner  of  the  land  to  whom  the  allotments  were  par- 
celled out,  paying  his'proportion  of  the  expenses  of  the  Act;  and  the 
question  was,  who  should  defray  such  expense,  and  the  expense  of  fenc- 
ing'such  allotments  ?  It  was  ruled  that  such  expenses  were  to  be  borne 
by  the  landlord,  L.ord  Ellenhorongh^  C.  J.  observing,  that  "  The  Act 
gives  the  commissioners  power  to  oust  the  tenant  from  his  occupation ; 
and  when  a  power  is  to  oust  the  tenant  of  the  rents  and  profits,  there 
the  tenant  may  pay  in  his  own  discharge,  and  for  the  redemption  of 
the  land  (6). 

Trespass  lies  against  a  person  for  disturbing  the  plaintiff  in  the  pro- 
fits of  a  fair  by  erecting  at  oil-booth,  without  saying  quare  clausumfre- 
git  (c). 

The  stat.  10  k  17  Car.  2.  says,  that  if  in  an  action  of  trespass  the 
plaintiff  happen  to  omit  the  words  vi  et  armis,  or  contra  pacem^  the 
want  of  those  words  shall  not  vitiate  the  declaration. 

(a)  F.-JX  V.  OaV.ley  and  others.     Oxf.  Sum.  Ass.  1802,  at  Shrews.  T's.  MSS. 
ft)  Smith  -a.  Pezrce,  Sitt  at  Guildball  after  >I.  T.  43  G.  3.  (c)  Ibid. 


Sell.   11.;  lo  the  TinanCs  J^ussrssion.  rr2ft 

If  there  is  lessee  fiir  life;  or  years  of  lands,  llic  ksj-ec  lias  no  j-iupnly 
in  t*i»:  liccs  irrouiii;;  on  tlu;  land,  ar.d  even  if  llac  clause  in  Ihc  Ita^e  ia 
•«  williout  iinpcaclnnent  of  uasle,"  it  gives  no  projierty,  hut  is  merely 
an  cxniipliun  from  an  action.  Vet  if  a  ^1ranL!;(r  cuts  tloun  any  trte?, 
the  Icfsee  may  maintain  trespasF,  but  lie  shall  not  recover  «iamap,rs  for 
the  vaiiie  of  the  trees,  hecanse  the  property  of  tluin  U  in  liiin  in  rever- 
sion ;  hut  the  (laniai;es  shall  he  for  cropping  and  hreaking  his  close,  aiul 
])(Tuaps  f)r  tlic  lofs  of  sluiile,  N.c.  (a). 

'lliis  action  also  lies  f;)r  not  repairing  fences,  wherehy  cattle  ronie 
info  ground  of  the  teniiit  and  do  damage^//). 

Every  mail's  j^roiind  i :,  in  the  eye  of  the.  law,  fciiccil  ;  and  where 
a  hedge  and  ditch  join  togetiii-r,  in  whose  ground  or  side  the  hed^^e  i?, 
to  the  owner  of  that  land  helongs  the  keeping  of  the  same  hedf;c  or 
fence,  and  the  ditch  adjoining  to  it  on  the  other  side,  in  re]iair  and 
scoured  (c). 

Where  entry,  aiithorily,  or  licence,  is.  given  to  any  one  by  the  law 
and  he  ainiscs  it,  he  \v  ill  he  a  trespasser  al/  initio ;  hut  w  here  it  is  given 
by  the  parly,  he  may  he  punished  for  l!ie  ahui^e,  but  lie  will  not  be  a 
trespasser  ah  initio  (r/). 

"Where  the  plaintiliis  in  the  actual  occupation  of  the  land,  tlione;1i 
he  had  no  legal  title  whatever,  f!ie  defendant  cannot  give  eviilence  of 
property  in  a  strani^er  under  the  general  issue  ;  but  where  land  is  not 
in  tiie  actual  possession  of  any  person,  as  commons  anclth"  like,  the  de- 
fendant, on  such  issue,  may  prove  the  Ltral  possession  to  be  in  a  lliird 

JICI'SJU  ('  ). 

It  w  ill  l)e  a  trespass,  if  a  :u3Ji  wrongfully  enters  the  house,  laiuls,  or 
tenements  of  anotiier  without  his  consei>l  ;  aiul  Ihcrcfore  trespass  lies 
dc  domo  SI/0  frada.  So,  for  entering;  his  messuai^c  or  tenement.  Or 
breaking  his  close.  Or  treading  down,  spoiling,  eating,  iS:c.  his  hay 
or  corn.  On  cutting  down  trees.  Or  hunting  in  his  clo.^e.  Or  break- 
ing hedges  and  ditches.  Or  throwing  down  or  disturbing  the  setting 
of  his  fold.  Or  breakin;^  up  his  pond.  So  if  a  man  enters  and  dors  da- 
mage to  another,  though  he  does  not  keep  the  possession  ;  us  trespass 
lies  tjunrc  domiim  vcl  clausum  frarit  (  /). 

The  lessee  for  years,  after  his  lease  is  expired,  may  have  action  fi)r  a 
trespass  on  the  land  before  his  lease  was  ended  (^ij). 

Where  one  declared  in  case  for  obstructing  a  watercourse  upon  his 
"  possession"  of  a  mill  "  with  the  appurtenauceh"  and  that  "  by  rna- 
.son  of  such  his  possession  he  had  aright  totlic  use  of  v.atcr  ruiuiiiig 
in  a  certain  tunnel  to  the  mill,"  such  allegation  was  not  supported  by 
proof  that  the  tunnel  was  made  on  the  defendant's  l.md,  which  lie  hail 

(<i.)  K«p,  N  P  384.  4  Ca  C3-  ■.  {b)  I  Salk.  33i.  U}  IOM.«l  'i»   Par.O*»   IBS. 

rd)  Uull.  N.  I".  81.  ff »  Tetke'sM.  r.r.  f     V\    H   k:   H  kr  Com   Uic  li*. 

"Trespasj."  tA^-21  i.?)  Bro.  Tresp  45r, 

OS 


r>20        Of  Trespass  for  immediate  Injuries        [Ciiap.  XXI. 

agreed  to  let  the  defendant  Iiavc  for  this  purpose  for  a  certain  consifJe- 
ralion,  ])iit  of  which  no  conveyance  was  made  by  him  to  the  plaintifl", 
and  he  had  since  refused  assent :  because  the  plaintiff  had  not  the  wa- 
ter bv  reason  of  his  "  possession"  to  the  mill,  .*>tc.  but  by  parol  licence 
or  contract,  which  could  not  pass  the  title  to  the  land,  and  as  a  li- 
cence was  revokable,  and  revoked  (a). 

Where  there  is  a  tenant  in  possession,  and  an  execution  (as  by /./«.) 
is  against  the  landlord,  whose  term  is  to  be  sold,  the  tenant  cannot,  it 
should  seem,  be  turned  out  of  possession  (/^). 

But  it  is  very  different  where  the  debtor  himself  is  in  possession  ;  in 
such  case,  Bullcr,  J.  inclined  to  think  that  the  sheriff  might  turn  him 
out  of  possession  (r). 

The  action  of  trespass  is  local  {d). 

The  plaintiff  may  prove  trespass  at  any  time  before  the  actios 
brought,  though  it  be  before  or  after  the  day  laid  in  the  declaration. 
But  in  trespass  with  a  continuando^  the  plaintiff  ought  to  confine  him- 
self to  the  time  in  the  declaration  :  yet  he  may  waive  the  continuandoy 
and  prove  the  trespass  on  any  day  before  the  action  brought,  or  he  may 
give  in  evidence  only  part  of  the  time  in  the  conthwando — Note.  That 
of  acts  which  terminate  in  themselves,  and  once  done  cannot  be  done 
again,  there  can  be  no  continuando ;  as  hunting  or  killing  a  hare,  or  five 
hares,  but  that  ought  to  be  alledged,  that  diversis  dlcbus  ac  vicibus 
between  such  a  day  and  such  a  day,  he  killed  five  hares,  and  cut  and 
carried  away  twenty  trees.  Where  trespass  is  laid  in  continuance  that 
cannot  be  continued,  exception  ought  to  be  taken  at  the  trial,  for  he 
ought  to  recover  but  for  one  trespass ;  but  hunting  may  be  continu- 
ed, as  well  as  spoiling  and  consuming  grass  {e). 

Whether  the  trespass  may  be  laid  with  a  continuando  or  not,  depends 
much  upon  the  consideration  of  good  sense ;  as  where  trespass  is  brought 
for  breaking  a  house  or  hedge,  it  may  well  be  laid  with  a  continuando^ 
for  pulling  away  every  brick  or  stick  is  a  breach:  but  if  the  declara- 
tion be  that  the  defendant  threw  down  twenty  perches  of  hedge  con- 
tinuando  transgrcssionem  pradictum  from  such  a  day  to  SLch  a  day, 
this  must  be  intended  of  a  prosternation  done  at  the  first  day,  and 
therefore  will  be  ill  upon  demurrer  or  judgment  by  default ;  but  it  will 
be  aided  by  verdict,  because  the  Court  will  intend  that  the  jury  gave 
no  damage  for  the  continuando  (^f). 

So,  trespass  cannot  be  laid  of  loose  chattels  with  a  continuando,  and  if 
it  be  so  laid  no  evidence  can  be  given  but  of  the  taking  at  one  day ;  and 
therefore  in  trespass  for  mesne  process  it  ought  to  be  laid  diirrsis  dicbus 
ac  vicibus.     Where  several  trespasses  are  laid  in  one  declaration,  contl- 

(a)  A  Ea';f  3  R.  107.  {h)  3  T.  R.  298.  (c)  Ibid.  (</)  II  Mod.  181. 

(e)  4T.  R.i03.  Bull.  N.  r.  8fi.  (/)  Ibid. 


^vii.   IT.l  lo  l/u  ''JVniinrs  Possrssioit.  .,1, 

nitando  trnnn'^rci'iioncs  Jiradivtas,  and  sonir  of  llicm  niny  Ix'  laid  with  a 
continitaiidoiuul  some  not,  :iftcr  vtnlict  tlic  <  onlinunndo  shall  lie  cxlciid- 
ed  only  to  the  trespasser,  which  may  he  laid  with  a  coiUimuindo.  h»o, 
Avher*'  tlic  contimiando  is  inipossiMc,  the  Court  will  intend  tliat  no  da 
mages  \\ere  j^iven  for  it  (a). 

Though  persons  having  only  a  ri:;lit  are  not  to  assert  that  right  by 
force,  and  if  any  violence  bo  used  it  becomes  tl>c  subject  of  a  criminal 
prosecution,  yet  a  person  havinc  a  riglit  ofpfissession  may  j)eaceal)ly  as- 
sert it,  if  he  do  not  tran?L;ress  the  lav\5  of  his  country  ;  for  a  person 
A\  ho  has  a  rii,'ht  of  entry  may  enter  peaceably,  and  beinp;  in  possession 
may  retain  it  and  plead  that  it  is  his  sf»il  and  freehold  (A).  The  com- 
mon plea  oiithcrum  tcncmcntum  proves  this  (r). 

It  is  impossible  to  suggest  the  possession  of  a  certain  term  that  is 
not  the«5ulijrct-matterofa  rei/.iu'c  by  the  sherilV  nudcr  a  jure  fa(  ins  (r/); 
and  as  in  a  deed  of  acsi-nment  the  slieriff  need  not  spfrify  the  parti- 
culitr  interest  wJiich  the  party  hati,  so,  if  he  can  convey  a  title  in 
geueral  words,  it  is  equally  suflkient  to  justify  in  the  same  ijeneral 
words  in  an  action  of  trespass  (t). 

It  is  a  general  rule  in  pleading  that  tlic  party  justifying  mti«t  sliew 
and  admit  the  f  tct  (/). 

A  special  jiistilication  must  l)eof  matter  of  fact,  and  not  of  record  ; 
for  m  liter  of  record  nmst  be  pleaded  even  by  an  o/hcer  (;/). 

Regularly,  indeed,  by  the  conuuon  law,  matter  of  excuse  or  justi- 
fication nmst  be  pleaded  specially  ;  as  in  trespass  to  real  property,  a 
liceiuc;  or  that  tlie  beasts  came  through  the  plaint ilT's  liedge,  which 
lie  ouL;lit  to  have  repaired  ;  or  i)y  reason  tif  a  rent-charge,  common  or 
the  like  (//). 

A  juslihcation  in  trespass  must,  it  is  said,  answer  the  whole  trespass 
as  laid  in  the  declaration. 

Thus,  in  trespass  for  breaking  and  entering  plaintiiT's  house  and 
expelling  him,  the  plea  justified  the  breaking  and  entering,  shewing  a 
good  cause  for  it,  and  it  was  luld  to  be  a  full  answer  to  the  count  ; 
fortlie  breaking  and  entering  are  the  gist  of  the  action,  and  the  ex- 
pulsion is  only  matter  of  aggravation  (/).  If  the  plaintiif  had  u  ished 
to  tak(!  advantage  of  the  exptilsion,  he  sliould  have  sliewn  the  special 
matter  in  a  new  a-^signmcnt,  for  according  to  tlie  six  carpenters'  case, 
he  shoidd  shew  in  reply  that  s-jch  makes  the  party  a  Irespasbcr  ab 
initio  (^). 

Tlureforo,  ulicre  trespass  was  for  going  over  tJic  plaintiiT's  close 
witli  horses,  cows,  ami  slieep,  and  the  defendant  justilied  that  he  had 
a  way  for  horses,  cows,  aud  sheep,  and  said,  thit  sue  \  a  day  he  went 

(a    1  T    U.  h<X\    Hull.  X    r   W.  ('03  T    W    ».V  fO  7  T.  R    «3I. 

id    (  T  R.  ff.ii.  (O  n.ld.  nr  (/)  W.^  (I)  «  Mod  40. 

'.    TiiliJ-i  Prac!.  537.  '    '•  T    n.  V>7.  (k)6T.  9..  U(. 


528         Of  Trespass  for  immediale  Tnjurics.       [Cliap.  XXI. 

over  with  horses ;  upon  demurrer  it  was  adjudged  ill,  for  it  was  a  jus- 
tification for  horses  only  (n). 
In  trespass,  the  value  of  the  damages  must  be  stated  and  proved  (b). 
Judgment  recovered  against  another  for  the  same  injury  is  a  good 
plea  in  bar  to  this  action  (c). 

Of  the  judgment  and  damages. — In  actions  of  tort,  as  trespass,  he. 
wTiere  the  wrong  is  joint  and  several,  the  distinction  seems  to  be  this  ; 
that  where  the  plea  of  one  of  the  defendants  is  such  as  shew  s  that  the 
plaintiiT  could  have  no  cause  of  action  against  any  of  them,  there  if 
this  pica  be  found  against  the  plaintiff,  it  shall  operate  to  the  benefit 
of  all  the  defendants,  and  the  plaintiff  cannot  have  judgment  or  da- 
mages against  those  who  let  judgment  go  by  default  ;  but  where  the 
plea  merely  operates  in  discharge  of  the  party  pleading  it,  that  it  shall 
not  operate  to  the  benefit  of  the  other  defendants,  but  notwithstanding 
such  plea  be  found  against  the  plaintiiT,  he  shall  have  judgment  and 
damages  against  the  other  defendants  (r/). 

If  there  be  a  demurrer  to  part  and  an  issue  u})on  the  other  part, 
or,  in  an  action  against  several  defendants,  if  some  of  them  demur 
and  others  plead  to  issue,  the  jury  who  try  the  issue  shall  assess  the 
damages  for  the  whole,  or  against  all  the  defendants.  In  this  case,  if 
the  issue  be  tried  before  the  demurrer  is  argued,  the  damages  are  said 
to  be  contingent,  depending  upon  the  event  of  the  demurrer.  But 
where  the  issue,  as  well  as  the  demurrer,  goes  to  the  w hole  cause  of 
action,  the  damages  shall  be  assessed  upon  the  issue,  ai:d  not  upon 
the  demurrer  (r). 

Where  there  are  several  defendants  who  sever  in  pleading,  the  jury 
•who  try  the  fir<;t  issue  shall  assess  damages  against  all,  with  a  ccssrt 
cxecuiio  ;  and  tlic  other  defendants,  if  found  guilty,  shall  be  contribu- 
tory to  those  damages,  in  trespass  against  several  defendants  who 
join  in  pleading,  if  the  jury  on  the  trial  find  them  all  jointly  guilty, 
they  cannot  assess  several  damages.  But  they  may  find  some  of  thera 
guilty  and  acquit  others;  in  .vhich  case  the  damages  can  be  assessed 
against  those  only  who  are  found  guilty  :  or  they  may  find  some  of  the 
defendants  guilty  of  the  whole  trespass,  and  others  of  part  only  :  or 
some  of  them  guilty  of  part,  or  at  one  time,  and  the  rest  guilty  of  the 
other  part,  or  at  another  time  ;  in  either  of  which  cases,  they  may  as- 
sess  several  damages  (/). 

Also,  where  in  an  action  against  several  defendants  the  jury  by  mis- 
take have  assessed  several  damages,  the  plaintiff  may  cure  it,  by  enter- 
ing a  nolle prosrqui  as  to  one  of  the  defendants  and  taking  judgment 
against  the  others ;  or  he  may  enter  a  remittitur  as  to  the  lesser  damages  ; 


'")  11  V.od.  213.  (h;  B  Mod.  153.  (c)  Cro.  Eliz.  20.        (d)  2  Tidd's  Pract.  805. 

''')  Ibid.  {/ )  Ibid.  iO». 


J 


>i  c  t.  f  I.]  io  tin   Ti  lUiiiCs  Possission.  '.^0 

or,  even  uitljoiit  enlniriL,^  a  /'  »i>ttilury  ho  may  lake  jiidq:iu(:iil  .i  /lii.  l 
all  llic  il(T(  iifl  nils  for  the  (greater  tlaiuafZrs  (u). 

AVlicrc  tlic  jury  iipDii  the  trial  of  an  isHiic  have  omit tctl  to  assess  the 
daniai;es,  tlic  omission  may  in  certain  ciw:;  l>e  supplif^l  by  writ  of 
inquiry.  V\  lure  they  give  greater  clamai^es  than  the  piainti;!'  has 
declared  for,  it  may  he  cured  by  entering  a  remittitur  of  the  surplus 
before  jiidt^nunt  (A). 

0/  the  Costs.— .\fi  to  cn<:ts,  the  ftat.  22.  23  (mi.  J.  ,.  9.  enacts, 
That  in  all  actions  of  trespass,  wherein  the  Jiidp^e,  at  the  trial  of  t!ic 
causes  shall  not  find  and  certify,  mukr  his  hand,  npnn  the  bad;  of  the 
record,  that  the  freeiiold  or  title  of  the  land  mcnl.ioncd  in  the  p!<iiii- 
till's  docl.irilion  uas  chiefly  in  (luct-linn  ;  tlic  plaintifT,  in  case  the  jury 
shall  find  the  damages  to  be  under  the  value  of  forty  shillings,  shall  not 
recover  or  obtain  more  co.-fs  of  suit  thui  tiic  dania;:,es  so  found  shall 
amount  unto. 

'Ihe  construction  (< )  of  this  statute,  v.hirh  now  prevails,  is  thit 
tiie  statute  is  confined  to  actions  of  assault  and  battery,  (^vhich  action 
is  comprised  in  it)  and  actions  for  local  trr-spasscs,  wh«r(  in  it  is  pi>s-i- 
ble  for  the  JudL;;e  to  certify  that  the  Ireeliold  or  title  of  the  land  ^^HH 
chiefly  in  question.  In  actions,  thrrrlore,  for  local  trespasses,  lliR 
statute  ap|)lies,  whenever  an  injury  is  done  to  tlie  freehold  ;  or  to  any 
thing  grouinc;  upon  or  nllixcd  to  the  freehold  ;  and  in  a  njoderrj  case 
it  was  carried  still  further. — That  was  an  action  of  trespass  (juare 
clausum  f regit ;  the  first  count  staled,  tliat  the  fLcfendarits  broke  and 
entered  the  close  of  the  plainti:r's,  and  the  grass  of  the  plai'ililf's 
tliere  then  growitiq;,  with  llie  feet  in  walliinij,  trod  doun,  spoiled, 
and  consumed,  anil  du:j  up  and  i^ot  divers  lar^e  quantities  of  turf, 
peat,  sods,  healli,  stones,  soil,  and  earth  of  the  pliiu1i;l's,  in  and 
upon  the  place  iu  whicli,  ^^c.  and  look  anrl  rnrridl  anaij  the  same,  and 
converted  and  disposed  of  the  same  to  their  own  use.  AnotJier  count 
was  iq)on  a  similar  trespass  in  another  close.  'J'ho  defendants  plead; d 
the  general  issue  to  tlic  whole  declaration,  and  two  sj)fcial  pleas  to  the 
5econd  count.  On  the  trial,  a  verdict  was  found  for  the  pl.jinliilV  on 
the  c:eneral  issue,  with  one  shiliintj  dama^"s ;  and  for  the  d(find;iJits 
on  the  special  pleas ;  and  the  Judge  had  not  ctrlifjctl.  I'rr  Loid  Mau^- 
fuld. — "  The  question  on  this  reconl  is,  whelher  t!ie  |)lairitiii"s  are  en- 
titled to  any  more  cnsts  than  dajnajres  under  the  slat.  21  &  23  C.2.  c. 
9.  ?  There  is  a  puzzle  antl  perj)lexity  in  the  oses  on  thi.s  part  of  l|je 
ftalnte,  and  a  juuiblc  iu  the  reports;  and  as  tl;c  question  is  -  rri-ril 
one,  we  thought  it  proper  to  cjiisull  all  th«  Judges  ;  and  11 
of  opinion,  that  this  case  is  witliin  the  statute,  and  that  the  |ilainli.;s 
onght  to  have  no  more  costs  than  damages.     ^' lu  w  ill  o'.s-:    ■■    *'■  ' 

./    :  Ti:.i'«  I'rs.i  '(i-s  /-"  I'.i.:  w. 


530  Of  Trespass  for  immediate  Injuries    [Chap.  XXI. 

what  has  been  called  an  asportavit  in  this  declaration  is  a  mode  or 
qualification  of  the  injury  done  to  the  land.  The  trespass  is  laid  to 
have  lieen  committed  on  the  land  by  digging,  Src.  and  the  asportavit  as 
part  of  the  same  act,  and  on  the  trial  of  the  issue,  the  freehold  cer- 
''  tainly  miglit  have  come  in  question.  This  is  clearly  distinguishable 
from  an  asportavit  of  personal  property,  where  the  freehold  cannot 
come  in  question,  and  which  therefore  is  not  witkin  the  Act.  Thus 
after  trees  are  cut  down,  and  thereby  severed  from  the  freehold,  if  a 
trespasser  comes  and  carries  them  away,  that  case  is  not  within  the 
statute,  because  the  freehold  cannot  come  in  question  ;  here  it  might." 

^\licre  an  injury  is  done  to  a  personal  chattel,  it  is  not  within  the 
statute  ;  nor  where  an  injury  to  a  personal  chattel  is  laid,  in  the  same 
declaration,  with  assault  and  battery,  or  a  local  trespass ;  consequently, 
in  these  cases,  though  the  damage  be  under  forty  shillings,  the  plaintiff 
is  entitled  to  full  costs,  without  a  certificate. — But  then  it  must  be  a 
substantive  and  independent  injury :  for  where  it  is  laid  or  proved 
merely  in  aggravation  of  damages,  as  a  mode  or  qualification  of  the 
assault  and  battery,  or  local  trespass,  or  there  is  a  verdict  for  the  de- 
fendant upon  that  part  of  the  declaration  wliich  charges  him  with  an 
injury  to  a  personal  chattel  it  is  within  the  statute  (i). 

The  certificate  required  by  this  statute  need  not,  it  seems,  be  grant- 
ed at  the  trial  of  the  cause.  The  award  of  an  arbitrator  is  not  tanta- 
mount to  a  Judge's  certificate  under  this  statute. 

It  has  been  determined  in  several  cases,  that  if  the  defendant,  in 
trespass  quare  ckmsvm  /regit,  plead  a  licence  or  other  justification, 
which  does  not  make  title  to  the  land,  and  it  is  found  against  him,  the 
plaintiiTis  entitled  to  full  costs,  though  he  do  not  recover  40.9.  damages; 
the  principle  on  which  these  determinations  have  proceeded  is,  that 
where  the  case  is  such,  that  the  judge  who  tries  the  cause  cannot  in 
any  view  of  it  grant  a  certificate,  it  is  considered  to  be  a  case  out  of 
the  statute.     So  on  a  plea  of  not  guilty  to  a  new  assignment  of  extra 
viam,  the  plaintiff  obtaining  a  verdict  for  less  than  4.0s.  damages  is  en- 
titled  to  full  costs,  without  a  Judge's  certificate  ;  unless  the  way 
pleaded  be  set  forth  !)y  metes  and  bounds :  and  when  the  plaintiff  is 
entitled  to  costs  upon  the  new  assignment,  he  is  entitled  to  the  costs  of 
all  the  previous  pleadings  (r). 

The  Stat.  4  &  5  IF.  &  M.  c.  23.  s.  10.  after  reciting  that  great  mis- 
chiefs ensue  by  inferior  tradesmen,  apprentices,  and  other  dissolute 
persons,  neglecting  their  trades  and  employments,  who  follow  hunting, 
fishing  and  other  games,  to  the  ruin  of  themselves  and  damage  of 
their  neighbours,  enacts,  "  That  if  any  sucli  person  shall  presume  to 

(a)  Doug.  780.  (*}  Ibid.  832.  (O  H)iti.  884. 


Sect.  II.]  lo  the   TtnanCs  Pusstssion.  .,.ji 

iuitit.hau  k,  fi>li  or  foul,  (uiiU'-s  in  cuinpany  witli  the  niafitcr  of  micU 
appriiitirc,  duly  ([ualiliKl  hy  law,)  micIi  prrsoii  ^ll^l|  l»c  siibjcrl  to  the 
jKiialties  of  this  Act,  ami  -liali  or  Jiiuy  be  sued  or  prosecuted  for  his 
^vilfid  trespass,  ill  siuli  hi.s  coiniii-  on  any  ptrson's  land  :  and  if  found 
guilty  tinrtof,  the  plaiiitill  thall  not  only  rtrover  his  daiiiai;tslhrrr!»y 
gustaincd,  but  his  full  costs  of  suit  ;  any  fornur  Jaw  to  the  contrary 
notwitlu^tanding."  The  words  *•  inferior  tradesman'*  ejctcnd,  it  seems 
to  every  tradesman,  not  qualified  to  kill  game  :  but  this  Has  doubtwl 
in  a  sul)se(]uent  ciLH",  wlierciii  the  Judges  were  divided  in  opinion  up- 
on the  question,  whether  a  surj^eon  and  ajiolhecary  should  be  con^id- 
cred  as  un  inferior  tradesman  (^0- 

So,  by  the  stat.  8  .V  'J  //'.  3.  r.  11.  s.  1.  for  the  prevention  of  wil- 
ful and  nialicious  trespasses,  it  is  enacted,  "  That  in  all  actions  of 
trespass,  to  be  commenced  or  prosecuted  in  any  of  his  Majesty's 
courts  of  record  at  U'cstniinstrry  wjjcrein  at  the  trial  of  the  cause  it 
thall  appear,  and  be  certified  by  the  Judge  under  his  hand  upon  the 
back  of  the  record,  that  the  trespass,  upon  whicli  any  defendant  shall 
])e  found  guilty,  was  \\ilful  and  jualiciour,  the  i)laintiir  shall  recover 
not  only  his  damages,  but  hi>  full  costs  of  suit ;  any  fornur  law  to  the 
contrary  notwithstanding."  The  certiGcatc  required  by  this  statute, 
need  not  \xt  granted  at  tiic  trial  of  the  cause  ;  and  if  it  appear  on  the 
trial  that  the  trespass,  however  trilling,  was  committed  after  notice, 
and  the  jury  give  less  than  KU.  damages,  the  Judge  is  bound  to  certify 
that  the  trespass  was  w  ilful  and  malicious,  in  order  to  intitle  the  plain- 
tiirto  his  full  costs  (A). 

In  an  action  of  tresjKiss,  brought  l>y  a  pauper  against  tlic  ovcrsccrii 
of  the  poor,  for  entering  his  house  and  taking  away  his  I'cd,  it\»as 
proved  that  on  tlie  defentlant's  entering  the  liouse,  tlic  i)Iaintifl'  <Ic- 
sired  them  to  go  away,  notwithstanding  which  they  persevered  in 
accomplishing  their  purpose.  JlctUh,  J.  ruled  this  to  be  a  wilful  tr^^- 
piiss ;  and  though  he  reprobated  the  action  as  an  improper  one,  umler 
the  circumstances  in  evidence,  yet,  he  said  he  lia<l  no  tli>crf.li""  !"  " 
wiis  bound  to  certify  that  the  tresj);iss  was  wilful  {(). 

W  here  the  declaration  consists  of  several  counts,  the  jilaintifl'  in  lh<» 
Court  of  A'.  IL  is  only  entitled  to  the  costs  of  such  as  are  fouiul  for  him  ; 
anil  utiMier  party  is  allowed  the  co^ts  of  those  A\liich  arc  found  for  the 
defendant.  Where  the  plaintiif's  declaration  consisted  of  two  counts, 
to  one  of  which  the  defeiidant  pi' aded  the  general  issue,  which  wdn 
found  for  the  plaintill,  and  lo  the  other  a  ju.-tification,  lo  which  the 
plaintid'denujrred,  and  jud;^ment  was  Ihercuixm  given  for  the  defcfiil- 
ant  ;  the  Court  agreed  that  tlu-  defendant  could  have  nocci-ls  upon  the 

(•J  Douj.  8E6  fi;  IbH.  837.  . 


532  Of  Trespass  on  the  Case.  [Cliap.  XXI. 

demurrer  {c). — Kut  if  there  l>e  two  distinct  causes  of  action,  in  two 
separate  counts,  and  as  to  oae  the  defendant  suffers  judgment  to  go  by 
default,  and  as  to  the  other  takes  issue,  and  obtains  a  verdict,  he  is  en- 
titled to  jiKl^uiciit  fur  his  costs  on  the  latter  count  notwithstanding  the 
plainiilF  is  entitled  to  judgnient  and  costs  on  the  first  count.  So  where 
tlie  declaration  in  trerpass  consisted  of  one  count  only,  to  which  there 
^vere  several  pleas  of  justification  on  wliich  issues  were  taken,  and  a  new 
as=i;^'nmcnt  on  which  judgnient  passed  by  default,  and  a  venire -wdiR 
awarded,  as  well  to  assess  the  damages  on  the  judgment  by  default,  as 
\q  try  the  issues ;  all  the  issues  being  found  for  the  defendant,  it  was 
fioldcn  that  iic  was  entitled  to  tlie  costs  of  them  [b). 


Of  Trespass  on  the  Case. 

For  injuries  to  Ids  possession,  an  action  on  the  case  will  also  lie  in 
most  cases  where  trespass  would  be  maintainable  ;  and  in  others  where 
it  would  not. 

An  action  on  the  case  lies  for  consequential  damages  where  the  act 
itself  is  not  an  injury.  It  is  now  indeed  a  settled  distinction,  that 
wiiere  the  immediate  act  itself  occasions  a  prejudice,  or  is  an  injury  to 
the  plaintiii's  person,  house,  land,  ^-c.  trespass  vi  et  armis  will  lie  ;  but 
where  the  act  itself  is  not  an  injury,  but  a  consequence  from  that  act  is 
prejudicial  to  the  plaintitl's  person,  house,  land,  Src.  trespass  vi  ct  armis 
will  not  lie,  but  the  proper  remedy  is  an  action  on  the  case  (r).  The 
di.i'erence,  therefore,  between  trespass  and  case  is,  that  in  the  trespass 
the  plaintiff  complains  of  an  immediate  Avrong ;  and  in  case,  of  a 
wrong  that  is  the  consequence  of  another  act  (c/.) 

Fixing  a  spout,  therefore,  so  as  to  discharge  water  upon  the  land  of 
another,  is  only  consequentially  injurious,  and  the  party  who  sustains 
the  damage  must  bring  the  case  in  order  to  get  a  compensation  (<?). 

So,  if  a  man  who  ought  to  enclose  against  my  land,  do  not  enclose, 
whereby  the  cattle  of  his  tenants  enter  into  my  land,  and  do  damage  to 
me,  I  may  have  this  remedy  (/). 

So,  case  lies  for  breaking  the  fences  of  a  third  person,  whereby  my 
cattle  escape  into  his  land  and  are  distrained  (/,'). 

If  a  house  of  office  be  separated  from  other  premises  by  a  wall,  and 
that  wall  belongs  to  the  owners  of  the  house  of  office,  he  is  of  com- 
mon right  bound  to  repair  it,  and  an  action  on  the  case  will  lie. 

In  such  action  by  a  lessee  for  years  against  the  owner  of  the  adjoin- 
ing house,  for  not  repairing  a  party-wall,  by  which  the  plaintiff's  house 

(a)  Oxf.  Slim.  Ass.  ICOO  T.'s  MSS.  888.  (6)  lliid.  SeS.  (c)  Bull.  N.T.  74.  2  Ld. 

Raym.  1402.  8  Mod.  275.  6  T.  U.  449.'  (d)  1  Sir.  635.  (0  -  Ld.  Raym.  1333. 

(f)  Bull.  K.  F.  74.  (t)  I  Ld.  Rayro.  273. 


Srct.  If.  I  C^l'  IWspnss  on  tin    Cast.  .  ,  ; 

\\;ls  dainat;"!!,  it  is  ii.)t  nrcc«Siiry  to   ffatr  llial  he  wns  bound  hy  lui- 
ii;)iu)n  to  repair  the  uall;  it  is  fJiifhci;  iil  to  drclarc  lh.it  ho  was  po'- 
i    I  lufssuas^c  for  a  certain  nuiiihcr  uf  y care,  aud  that  the  <!-: 
,L  oii:;lit  to  repair  t'ri  N\all  ((f)* 
. .  ,'r.     If  the  ouiKT  of  the.  hoiiM:  is  IiouikI   to  repair  it,  he  «ti:i1  ikI 
the  oci'iipier  is  iialilc  to  an  nctioi)  on  the  casp  fur  an  injury  sustaliicil  by 
a  striinj;cr  from  the  want  «»f  repair  (A). 

But  an  act i.in  on  the  case  for  not  r<i)airin^  uim-,  mm.u1,-,   urHilicr 
p.irty  is  tlininificil,  can  only  lie  muintaintd  a-iuin'^l   the  uccuiiifr,  and    • 
ot  ai^ainst  llie  ounerof  tlie  fee,  who  is  not  in  pos«-essii>n  (r). 

C'ase  may  he  niaintaitjcd  hy  a  lessee  for  vtarK,  lor  uln-U  "le 

lights  of  an  ancicnl  njcssuaqc.     A  dftiar.ition,  tl:a1  t!»e  <lel  i-', 

:  ad  yet  15  pissepsed  of  a  house  and  a  void  itivoi'  of  lnnt,  and  erected 
l»iiiidin!^s  thereon,  and  tiicrel)y  stopped  the  lii^ht  condni;  hy  the  Miid 
^>indou•s  into  his  house,  whereby  his  honse  wa.s  totally  d  m'  ■  i"  1  "i  I 
,10  much  prejudiced  by  such  stopjung,  is  j;ooci  (</). 

So  in  an  action  for  .stoppini^  the  piaintiii's  lights,  it  is  suiiirient  tn 
i!rclarethat  he  was  poF^-csbed  of  such  a  messuage  for  years  and  had 
iud  ouijht  to  have  such  ligld,  without  stating  tliat  tl»c  iucssna.-";e  and 
lights  were  ancient  (r) — Not  lon:!;thenin'^  windows,  or  niakinq  mure 
lipids  iii  the  old  wall  than  formerly,  was  t!iou.j;ht  by  ]..  llanbriikc  i.ot 
to  vary  the  ri^^ht  ol  parsons.  In  !eed  a  contrary  doctiIi.>;  miLjlit  en  ate 
rummcrabie  dilhcnlties  in  populous  cities  (/). 
A  prescription  of  ancient  lights  is  to  t  he  liuusc,and  not  to  t  he  person  (tr). 

Special  matter  iniy  bo  given  in  evivlcuf '*'■ " vl       •'•  in  an 

action  on  the  case  for  stoppliii;;  lipids  (/<). 

Tids  action  lies  for  daniai^cdone  to  the  piaintiii's  collicrvv  by  what 
tlie  defendant  has  done  to  Ida  own  colliery,  within  his  owti  .••oi',  though 
several  other  collieries  lie  l)elwten  tlicm  :  and.trcsp,js>  :•/  (t  (xrmis  dues 
iK)t  lie,  for  the  damage  is  not  immediate,  but  consequential  (i). 

Case  does  not  lie  for  a  mere  trispa^f:  as,  for  iJidlinu;  tloun  a  uill, 
and  taking  down  the  tihis  from  a  Iioiisc  hm'.i-s  It  be  alicdj^i  d  that  the 
limber  was  thereby  rotted  (A). 

A  possessory  right  is  sti'licient  to  maintain  an  action  of  trespass  or 
case,  though  not  a  replevin.  Bnttr;";"  "v!  <  •  f'-'-t  be  joined, 
for  the  judgments  diiler;  that  inti  ;  and  thai 

In  case,  though  ;•/  it  armisy  am 

As  this  action  arises  from  t  ■  i.    ou 

-  i ven  in  cviJcnce  on  the  j^'tntral .  ■  n  (w). 


I 


531  Of  Trespass  on  llie  Case,  [Chap.  XX  f. 

A  declaratioji  for  stopping  up  a  watercourse,  without  shewing  how, 
is  had  upon  demurrer  :  but  unobjectionable  after  verdict  (o.) 

Case  lies  against  the  proprietor  of  tithes  for  not  taking  them  away  ; 
])ut  trespass  vi  ct  armis  will  riot ;  because  it  is  only  a  non-feasance 
and  not  a  «ia!-feasance  {h).  The  declaration  may  state  that  the  plain- 
tiff set  out  the  tithes,  and  the  defendant  refused  to  take  them  away; 
or  the  plaintiff  may  declare  with  ^per  quod  the  grass  did  not  grow 
where  the  tithes  lay,  and  he  could  not  put  his  cattle  into  the  close  to 
pasture  the  residue  of  the  grass,  lest  they  should  hurt  the  tithes;  for 
though  the  proprietor  of  tithes  does  not  remove  them  in  convenient 
time,  the  owner  of  the  land  cannot  put  in  his  cattle  and  eat  them,  for 
to  permit,  if  the  corn  be  not  removed  at  the  day,  to  put  in  his  cattle 
and  eat  all  the  corn,  would  be  a  much  greater  loss  to  the  parson  than 
that  which  the  plaintiff  hath  sustained  by  the  continuance  of  the  corn 
upon  the  land,  besides  that  it  is  much  more  reasonable  to  permit  the 
plaintiff  to  bring  an  action  against  the  parson,  and  so  the  Court  to  be 
the  judge  of  the  reasonableness  of  the  time,  and  that  the  recompence 
be  proportionable  to  the  loss  sustained  (r). — In  such  a  case,  the  own- 
er's remedy  is  either  by  distress  or  action  (i). 

Case  will  not  lie  against  a  parson  for  not  taking  away  his  tithe,  un- 
less they  have  been  properly  set  out :  it  is,  therefore,  not  maintainable 
for  not  taking  away  the  tithe  of  hay  where  it  was  not  set  out  in 
swathe  (f). 

A  parson  is  not  entitled  to  carry  his  tithes  home  by  every  road  which 
the  farmer  himself  uses  for  the  occupation  of  his  farm.  Semble  that 
he  may  only  use  such  road  as  the  farmer  does  for  the  occupation  of 
the  close  in  which  the  tithes  grow  (/). 

For  other  points  respecting  this  action,  we  refer  our  readers  to 
Chap.  XVII. 

(a;  1  Ld.  Raym.  452.  (b)  3  Bur.  189.  (c)  2  Ld.  Raym.  1C7,  9. 

^d)  3  T.  R.  72.  (e)  3  Esp.  R,  31.  ( f)  2  Bos.  &  Pull.  N.  R.  466. 


XL,    j 


CIIAPl  KH  WII 


<//   Jicmtihts  against  third   l\rsons  ;  nlurun  tij   J'orrHjl: 
Entry  and  Dttauur. 


FORCIBLE  entry  and  detainer  arc  ofl'cnccs  at  the  common  law; 
and  the  prosecutor,  if  he  pleases,  may  proceed  in  tliat  way  :  l)ul 
then  the  indictment  ought  to  express,  not  only  the  connnon  technical 
words  with  force  and  arms,  Ijut  also  such  circumstances,  as  that  it  may 
appear  upon  the  face  of  the  indictnunt  to  he  more  than  a  common 
trespass  («). 

But  the  safe?t  and  most  nsiial  way  is,  to  proceed  upon  the  statutes. 
Concerning  wliich,  it  may  he  premise(J,  that  "  th^y  who  keep  posses- 
sion with  force,  in  lands  and  tenements,  whereof  they  or  their  ances- 
ors,  or  they  whose  estate  they  have  in  the  same,  have  continued  their 
possession  of  the  same,  l)y  three  whole  years  next  before  witliout  inter- 
I Tiption,  shall  not  he  ciidamai^ed  l»y  force  of  any  of  the  statutes  conccrn- 
ti;,'  forcil)lc  entry."     8  //.  0.  <■.  «.).  .?.  7. 

Forcibte  Entrt/,  nhnt. — By  the  5  R.  2,  r.  8.  "  None  shall  make  any 
•iitry  into  any  lands  or  tenements  (or  benefice  of  the  holy  church,  15  N. 
I.  c.  2.  or  other  possessions,  8  //.  0.  r.  0.  s.  2.)  hid  ^here  (utry  is  qinn 
•y  the  law  ;  and  in  such  case,  not  with  strong  hand,  nor  with  midti- 
tiidc  of  people,  !)nt  only  in  peacca!)le  and  easy  manner,  oti  pii;:  of  i.n- 
prisonmcnt  and  ransoni  at  the  King's  will." 

Or  other  possrssions.]     It  seems  clear,  t!iat  no  one  can  come  within 

the  danc;er  of  these  statutes,  l>y  a  violence  offered  to  another  in  respfct 

fanw/,  or  such  like  ea'^ement,  which  is  no  pocses>-lon.     And  thc«*c 

renis  to  he  no  good  authority,  that  an  indictment  will  lie  on  tins  case 

for  a  r.ommun  or  ({fficc  (/>). 

X)t  nith  slreiig  fuinc'^  nor  nitk  nutUitudc  ofptoj>h.j     It  ■^ccni'^  reria.ti, 


536  Forcible  Enlry  and  Detainer.        [Chap.  XXII. 

that  if  one,  uho  pretends  a  title  to  lands,  barely  go  over  them,  either 
with  or  without  a  great  number  of  attendants,  armed  or  unarmed,  in 
his  way  to  the  church  or  market,  or  for  such  like  purpose,  without  do- 
ing any  act,  which  either  expressly  or  impliedly  amounts  to  a  claim  up- 
on such  lands,  he  cannot  be  said  to  make  an  entry  thereinto  («). 

But  it  seemeth,  that  if  a  person  enter  into  another  man's  house  or 
ground,  either  with  apparent  violence  oft'ered  to  the  person  of  any 
other,  or  furnished  Mith  weapons,  or  company,  which  may  oiler  fear; 
though  it  be  but  to  cut  or  take  away  another  man's  corn,  grass^  or 
other  goods,  or  to  fell  or  crop  wood,  or  do  any  other  like  trespass,  and 
though  he  do  not  put  the  i)arty  out  of  his  possession,  yet  it  seemeth  to 
be  a  forcible  entry.  But  if  the  entry  were  peaceable,  and  after  such 
entry  made,  they  cut  or  take  away  any  otlier  man's  corn,  grass,  wood, 
or  other  goods,  without  apparent  violence  or  force  ;  though  such  acts 
are  accounted  a  disseisin  with  force,  yet  they  are  not  punishable  as  for- 
cible entries  (b). 

But  if  lie  enter  peaceably,  and  there  shall,  by  force  or  violence,  cut 
or  take  any  corn,  grass,  or  wood,  or  shall  forcibly  or  wrongfully  carry 
away  any  other  goods  there  being  ;  this  seemeth  to  be  a  forciiile  entry 
punishable  1)}'  these  statutes  (r). 

So  also  shall  those  be  guilty  of  a  forcil)le  entry,  who,  having,  an 
estate  in  land,  by  a  defeasible  title,  continue  with  force  in  the  posses- 
sion thereof,  after  a  claim  made  by  one  who  had  a  right  of  entry 
thereto  (ri). 

But  he  who  barely  agrees  to  a  forcible  entry  made  to  his  use,  with- 
out his  knowledge  or  privity,  shall  not  be  adjcdged  to  make  an  entry 
■within  these  statutes,  because  he  no  way  concurred  in,  or  promoted  the 
force  (/■), 

Indeed,  in  general,  it  seemeth  clear,  that,  to  denonjinate  the  entry 
forcible,  it  ought  to  be  accompanied  ^^ith  some  circun^stances  of  actu- 
al violence  or  terror  ;  and  therefore  that  an  entry  which  hath  no  other 
force  than  such  as  is  iraplied  by  the  law,  in  every  trespass  whatsoever, 
is  not  within  the  statutes. 

As  to  the  matter  of  violence  ;  it  seems  to  be  agreed,  that  an  entry 
niay  be  forcible,  not  only  in  respect  of  a  violence  actually  done  to 
the  person  of  a  man,  as  by  beating  him  if  lie  refuse  to  relinquish  his 
possession,  but  also  in  respect  of  any  other  kind  of  violence  in  the 
manner  of  tlie  entry,  as  by  breaking  open  the  doors  of  a  house,  whe- 
ther any  person  be  in  it  or  not,  especial!}^  if  it  be  a  dwelling-house, 
and  perhaps  also  by  an  act  of  outrage  after  the  entry,  as  by  carrying 

(n)  0  Bun,-..;  Jiist.  1  11.  P.  C.  r.Ol.  i  10.  (/<;  Dnlt.  c   126.  (e)  IbiO- 

•t)  1   M.    r    '      •:.   .  ,         .  .  (f.)  Iljicl  S.  24. 


Forrihic  Kntry  and  Ddaincr.  ')'Sl 

away  thr.  \)arty'!' i;"0(ls.  lint  it  fit-cnis,  that  an  nitry  is  not  forcihlr 
by  tlio  Iiaic  (Irauii)g  up  a  latcli,  or  piillin;;  back  the  boll  of  a  door, 
there  hciiig  no  appcaranro  therein  of  beir)i;  done  by  strong  hand  or 
mullihtdc  of  people  ;  and  it  hath  been  holden,  that  entry  into  a  hoUBc 
through  a  wimlow,  or  by  opcnirig  a  door  with  a  key,  is  not  forci- 
hk   (a). 

Ill  reppect  of  the  c i re u instances  of  irrror  ;  it  is  to  l)c  observed,  tliat 
\vhercvtr  a  man,  either  f)y  his  l>rhKviour  or  speech,  at  the  time  of  hi- 
entry,  a[ivcs  tliofie  who  are  in  jiosHs-ion  just  cau«c  to  frar  that  he  uill 
do  them  some  bodily  hurl,  if  they  will  not  give  way  to  him,  his  entry 
is  esteemed  forcililc,  whether  he  cause  fiirh  a  termr  l»y  carryni^j  with 
him  such  an  unusual  niimt>er  of  attendants,  or  by  armini;  hinL»eil'  in 
such  a  manner,  as  plainly  intimates  a  design,  or  by  actually  threatening 
to  kill,  maim,  or  beat  those  who  sliould  continue  in  possession,  or  by 
giving  out  such  speeches  as  plainly  imply  a  purjKysc  of  iiFing  forc^, 
as  if  one  say  that  he  will  keep  hii  posse.'-slon  in  spite  of  a!l  men,  or  tl:e. 
like  (A). 

Hut  it  seems  tliat  no  entry  shall  he  jtulgcd  forcible  from  any  tlnvat- 
enin::;  to  spoil  another's ^'oor/y,  or  to  destroy  his  cattle,  or  to  do  him  any 
other  such  like  damage,  which  is  not  personal  {'). 

However,  it  is  clear  that  it  may  becommittc<l  by  a  single  iKTSon,  as 
well  as  by  twenty  {<!). 

But,  nevertheless,  all  those  who  accompany  a  man,  w lien  he  makes 
a  forcible,  entry,  shall  he  judged  to  enter  with  him,  whether  they  actu- 
ally come  upon  the  land  or  not  (r). 

Fordhlc  l)<t(iiiicr,:ihnt. —  The  same  circumstances  of  violence  or  ter- 
ror wiruh  wiil  make  an  entry  forcible,  will  make  a  detainer  forcible 
also  ;  and  a  detainer  may  be  forcible,  whether  the  entry  were  forclljie 
or  nnt  (  /■). 

JIow  punishable  bj/  Action. — By  stal.  S  //.  ').  .v.  ('».  "  If  any  i>er- 
«on  be  put  out  or  disseised  of  any  lands  or  tenements  in  a  forciI<Ie 
manner,  or  put  out  jieaceably,  and  after  holden  out  with  Ftrong  hand  : 
the  parly  grieved  shall  have  assiZv;  of  novel  di^suisin,  or  \.  ritof  tres- 
pass against  the  disseisor  :  and  if  he  recovers  he  shall  have  treble  da- 
mages, and  the  defendant  moreover  shall  nn'  '"  ud  ran'^^om  to  lb- 
king." 

The  Pnrttf  of^griived  shall  hai'e  Assize^  ^c]  But  lh!!«  action  being  at 
the  suit  of  the  parly,  and  only  for  the  rit;ht,  i<  only  wlure  the  entry  of 
the  defendant  was  not  Uxwiul  ;  lor  if  a  man  enlerelh  with  r»rce,  where 
his  entry  is  lawful,  he  shall  not  be  punished  by  way  of  action  ;  but  yet 

'n-  1    H     r  I  ■!    «. 

.e)   IbiJ.   ^     ...  '     W..:     ■ 


538  Forcible  Entry  and  Detainer.        [Chap.  XXII. 

he  may  be  indicted  upon  the  statute,  for  the  indictment  is  for  the  force 
and  for  the  king,  and  he  shall  make  fine  to  the  king,  although  his  right 
is  never  so  good  (r/). 

Treble  Damages.]  And  this  he  shall  recover  as  well  for  the  mesne 
occupation  as  for  the  first  entry  ;  and  albeit  he  shall  recover  treble  da- 
mages, yet  he  shall  recover  costs,  which  shall  be  trebled  also ;  for  the 
word  damages  includeth  costs  of  suit  (Jj). 

Hojv  punishable  at  the  Sessioris. — The  party  grieved,  if  he  will  lose 
the  benefit  of  his  treble  damages  and  costs,  may  be  aided  and  have 
the  assistance  of  the  justices  at  the  general  sessions,  by  way  of  indict- 
ment, on  the  statute  of  8  if.  6.  which  being  found  there,  he  shall  be  re- 
stored to  his  possession,  by  a  writ  of  restitution  granted  out  of  the 
same  Court  to  the  sheriiT  (r). 

In  the  caption  of  which  indictment,  it  will  be  sufficient  to  say, 
*' justices  assigrucl  to  keep  the  peace  of  our  lord  the  king,''  without 
shewing  that  they  have  authority  to  hear  and  determine  felonies  and 
trespasses  ;  for  the  statute  enables  all  justices  of  the  peace,  as  such,  to 
take  such  indictments  (<:/). 

The  tenement  in  which  the  force  was  made,  must  be  described 
with  convenient  certainty  ;  and  the  indictment  must  set  forth  that 
the  defendant  actually  entered,  and  ousted  the  party  grieved,  and 
continueth  his  possession  at  the  time  of  finding  the  indictment  ; 
otherwise  he  cannot  have  restitution,  because  it  doth  not  appear  that 
heneedeth  it  (p).  But  if  a  man's  wife,  children,  or  servants,  do  con- 
tinue in  the  house  or  upon  the  land,  he  is  not  ousted  of  his  possession, 
but  his  cattle  being  upon  the  ground  do  not  preserve  his  possession 

A  repugnancy  in  setting  forth  the  olTence  in  an  indictment  upon  any 
of  the  statutes,  is  an  incurable  fault  (§•). 

An  indictment  for  forcible  entry  was  quashed  therefore  for  not 
setting  forth  that  the  party  was  seised  or  disseised,  or  Mhat  estate 
he  had  in  the  tenement  ;  for  if  he  had  only  a  terra  for  years,  then 
the  entry  must  be  laid  into  the  freehold  of  J.  in  the  possession  of  B. 
ih).    ■ 

How  punishable  hij  a  Justice, — By  8  H.  6.  c.  9.  for  a  more  speedy 
remedy,  the  party  grieved  may  complain  to  any  one  justice,  or  to  a 
3iiayor,  sheriif,  or  bailifT  within  their  liberties.  Bat  although  one  jus- 
tice alone  may  proceed  in  such  cases,  yet  it  may  he  advisal^le  for  him, 
if  the  time  for  viewing  the  force  will  sufi^er  it,  to  take  to  his  assistance 
oue  or  two  more  justices. 

(aj  2  Burn's  Just. Dalt.c.  12j.  (b)  7  Tnst- 257.  (e)   DaU.  c.  123. 

(d'l  1  H.  P.  C.  c.  G4.  s.  06.  («;  Ibia.  s.  37.  4l.  (/)  DaU.  c.  rj2, 

i?)  \  H.  P  C    cm.  s.  39.  lA)  3  Salic  tOO.  3  Bur.  1732. 


Forcihlt  Entry  ami  Detainer.  539 

Concerning  uhich  power  of  one  justice  it  is  enacted  as  follows  • 
''  After  complaint  made  to  such  justice,  by  the  party  grieved,  of  a 
forciMe  entry  nridc  into  lands,  tenement^,  or  other  po<sifsion?,  or 
forcilily  holJin.;  thereof,  he  ••liall,  within  a  convenient  lime,  at  the 
costs  of  the  party  irrltved,  (without  any  cxamininsj  or  standing  upon 
thf  ri^ht  or  title  of  either  party),  take  sufTiciont  power  of  the  county, 
and  go  to  tlie  place  where  the  force  is  made.*'  \'H.:*.  '  •^'  ','  '" 
9.  s.  2.  («). 

Complaiia hi  the  Party  grieved.^     Vtt  tlie?e  words  do  not  in- 

forceany  necessity  of  sucli  a  comi/iaint ;  for  it  ii  holdcti,  that  the  jus- 
lice  may  and  ou^^ht  to  proceed,  upon  any  inforni.itiun  or  knowledge 
thereof  whatsoever,  thom^li  no  complaint  at  all  be  brought  unto  him, 
by  any  party  grieved  thereby  ('<). 

Ponrr  of  the  Cuunfi/.]  All  people  of  the  county,  as  well  the  -.umi 
as  others,  shall  be  attendant  on  the  justices,  to  arrc^^t  the  offenders,  on 
pain  of  imprisonment  and  fine  to  the  king.     15  li.  2.  c.  2. 

And  if  the  doors  be  shut,  and  they  within  t!ic  house  shall  denv  the 
justice  to  enter,  it  seems  he  may  break  open  the  hoii'^e  to  rcino\e  the 
force  (c). 

And  if  after  such  entry  made,  the  justice  "  sliall  find  such  force#> 
he  shall  cause  the  ojiendcrs  to  be  arrested."     1.5  Ji.  2.  c.  2.     8  //.  G, 
c.  9.  s.  2. 

He  shall  also  take  away  their  weapon?  and  armour,  and  cause  them 
to  be  appraised,  and  after  to  be  answered  to  the  king  as  forfeited,  or  the 
value  thereof  (r/). 

Also  such  justice  ought  to  «'  make  a  record  of  such  force  by  him 
vi-wed  ;"  which  record  shall  l)e  a  sufficient  conviction  of  the  ojTtnders, 
and  the  parties  shall  not  be  allowed  to  traverse  it ;  and  this  record,  be- 
ing made  out  of  the  sessions  by  a  particular  justice,  may  I>e  kept  by  him ; 
or  he  may  make  it  indented,  and  certify  the  one  part  into  the  Kind's 
Bench,  or  leave  it  with  the  Clerk  of  the  Peace  ;  and  the  other  part  he 
may  keep  himself.  For  this  view  of  the  force  by  the  justice,  being  a 
judge  of  record,  maketh  his  record  thereof,  in  the  judgment  of  tiie 
law,  as  strong  and  efleclual  as  if  the  oUenders  had  r.onfesst  d  the  force 
before  him  :  and  touching,  the  restraining  of  traverse,  more  eiitctual 
than  if  the  force  had  licen  found  by  a  jury,  ui>on  the  evidence  of  others. 
(This  is,  as  to  the  fine  and  imprisonment,  but  not  as  to  restitution.) 
15  R.  2.  c.  2.  (r). 

Shall  be  put  in  the  next  ^oo/.— The  oflenders  being  arrested  (3S  be- 
fore said),  shall  be  put  in  the  next  gaol,  tliere  to  abide  convict  by  the 
record  of  the  same  justice,  until  tin  v  Iivo  made  fl"'^  inl  r  -i<,iin  i..  li- 
king.    15  7?.  2.  c.  2. 

'.a:  D»lt   c    u  .'i    la-'     :•." 

'(-'  JMd    1  H.  P.  C    c  G«  •   e 


540  Forcible  Entry  and  JJdaimr.        [Chap.  XXlL 

But  it  is  said,  thai  tlie  justice  bath  no  power  to  commit  the  offender 
to  gaol,  unless  he  do  it  upon  his  own  view  of  the  fact,  and  not  upon 
the  Jury  finding  the  same  afterwards  (a). 

And  if  such  oilenders,  being  in  Ihe  house  at  the  coming  of  the  jus- 
tice,.shall  make  no  resistance,  nor  make  shew^  of  any  force,  then  the 
justice  cannot  arrest  or  remove  them  at  all  upon  such  view. 

If  however  the  force  be  found  afterwards,  by  the  inquiry  of 
the  jury,  the  justice  may  bind  the  offenders  to  keep  the  peace  ;  and 
ii"  tliey  be  gone,  he  may  make  his  warrant  to  take  them,  and  may 
after  send  them  to  the  gaol,  until  they  have  found  sureties  for  the- 
peace  (^b). 

Utttii  they  have  made  Fine.]  If  the  justices  convict  a  man  of  a  forci- 
ble detainer,  they  ought  to  set  the  proper  fine  upon  him.  But  this  they 
are  not  bound  to  do  upon  the  spot,  but  they  may  take  a  reasonable  time 
to  consider  of  the  fine  :  for  by  the  words  of  the  Act,  the  commitment 
is  to  be  until  he  has  paid  the  fine  (c). 

The  fina  must  be  assessed  upon  every  offender  severally,  and  not  up 
on  them  jointly  ;  and  the  justice  ought  to  estreat  the  fine,  and  to  send 
the  estreat  into  the  exchequer,  that  from  thence  the  sheriff  may  be 
eommanded  to  levy  it  for  his  majesty's  use.  But  upon  payment  of  the 
fine  to  the  sheriff,  or  upon  sureties  found  (by  recognizance)  for  the 
payment  thereof,  it  seemeth  that  the  justice  may  deliver  the  offenders 
out  of  prison  again  at  his  pleasure  (c/). 

So  much  concerning  removing  the  force.  But  the  party  ousted  can- 
not be  restored  to  his  possession  by  the  justice's  view  of  the  force,  nor 
unless  the  same  be  found  by  the  inquiry  of  a  jury. 

Concerning  which  it  is  enacted  as  follows ;  "  And  though  that  the 
persons  making  such  entry  be  present,  or  else  departed  before  the  com- 
ing of  the  justice:  he  may  notwithstanding,  in  some  good  town  next  the 
tenement  so  entered,  or  in  some  other  convenient  place  by  his  discretion 
(and  that  though  he  go  not  lo  see  the  place  where  the  force  is),  have 
power  to  inquire  by  the  people  of  the  county,  as  well  of  them  that 
make  such  forcible  entry,  as  of  them  which  hold  the  same  with  force.'* 
8  //.  6.  c.  9.  s.  3. 

In  order  to  which,  "  the  justice  shall  make  his  precept  to  the  she- 
riff, commanding  liim,  in  the  king's  behalf,  to  cause  to  come  be- 
fore him  sufficient  and  indifferent  persons,  dwelling  next  the  lands 
so  entered,  to  inquire  of  such  entries ;  whereof  every  man  shall  have 
lands  or  tenements  of  40s.  a  year,  above  reprises.  And  the  sheriff 
shall  return  issues  on  every  of  them,  at  the  day  of  the  first  precept 
returnable  20s.  and  at  the  second  day  4Ds.  and  on  the  third  day  100^, 

(a)  Dalt.  c.  44.  1  H.  p.  C.  c.  G4.  H.  8.  0^)  Dilt.  c.  44.    2  Burn's  Just. 

>,  :.'  8tr.  794.  2  Ld.  Raym.  ISM.     1  Seas.  Cas.  2S0.  (d)  l)alt.  c.  44 


Fi)r(ihh  I'lntri/  nnd  Dctnimr.  ;«( 

and  at  every  day  aft*  r  douMc.  And  Ihc  sliiri!!'  inal.iiii;  drf.uil!. 
shall,  upon  conviction  of  the.  i^aid  JuRlicc,  or  Ixforc  the  judge  ol'  as- 
size, forfeit  iJO/.  half  to  the  kintj  and  half  to  jiini  who  shall  sue,  uilli 
costs  ;  and,  luonovcr  sh^Jl  make  fine  and  random  to  the  kin^'." 
s.  4-,  5. 

An  inqnisition  for  a  forcible  entry  is  q:ood,  althou-^li  it  be  not  staled 
that  the  juri'Vs  uerr  then  a,nd  there  sworn  ami  iin])aniielled  ( 

Jif  fore  the  same  Justt(  c]  'I'hc  justice  may  proceed  ai;aind  iii  sii^  j  nV 
for  this  default,  cither  by  !)ill  at  the  s^uil  of  tlie  jiarty,  or  by  indiclnurit 
at  the  puit  of  the  kin|if  {'/). 

The  defondant,  if  he  is  not  present,  ou.i;lit  to  be  called  to  answer  for 
liim^-elf ;  for  it  is  implied  by  natural  justice  in  the  cou.'^truetion  of  all 
laws,  that  uo  one  ought  to  suiler  any  jirejudice  hereby,  without  hav- 
ing  first  an  opportunity  of  defending  himself  (r)  :  and  it  seems  to 
be  settled  at  tliis  day,  that  if  tlic  defender  tender  a  /r^crrir  of  the 
force,  the  justice  ought  not  to  jnukc  any  restitidion  till  the  travertse  be 
tried  ((/). 

The  defendant  may  aI?o  by  the  M  I'Jiz.  c.  11.  \^\cvn\'' three  years' 
possession  ,-"  whereby  it  is  enacted,  "  That  no  restitution  upon  an  in- 
dictment of  forcible  entry,  or  holding  witli  force,  shall  be  made,  if  the 
person  indicted  ha\e  hatl  the  occupation, or  been  in  quiet  possession  for 
three  years  together  next  before  the  indictment  found,  and  his  estate 
therein  not  determined  :  and  restitution  shall  stay  till  that  be  tri'J  : 
and  if  it  is  found  ai^airist  the  party  indicted,  he  shall  pay  such  costs  and 
damages  as  the  judges  or  justices  sha.l  assess;  to  be  recovered  as  costs 
and  damages  iti  judgment  on  other  actions." 

It  hath  been  holilen,  tliut  the  ploi  of  such  possession  Is  good,  wilh- 
«ut  shewin:^  under  what  title,  or  of  what  estate,  such  possession  was; 
because  it  is  not  the  title,  but  possession  only,  which  is  material  in  tiiis 
case  (r). 

It  washolden  in  Lei,qhlon*s  case,  tliat  if  the  defendant  either  traverse 
the  entry  or  the  force,  or,  plead  that  he  has  been  three  years  in  po-.-^es- 
sion,  the  justice  may  summon  a  jury  for  tixe  trial  of  such  travere,  I'r 
it  is  impossible  to  determine  it  upon  view  :  and   if  the  justice  nave 
no  power  to  try  it,  it  \v«);dd  be  easy  for  any  one  to  elude  the  slatiite  by 
the  tender  of  such  a  traverse,  and  therefore  by  a  m-cessary  const  r<.eii..n 
the  justice  must  needs  have  this  power  as  incidental  to  whatisexj  ! 
given  him  (/) :  and  this  traverse  must  !»e  tcndercil  ir;  wi 
by  a  bare  denial  of  the  fact  in  words  ;  for  thereup  .ua  ;'r. 
be  awarded,  a  jury  returned,  the  issue  tricil,  a  verdict  found,  and  judg- 
ment given,  and  costs  and  damages  awardeil  ;  and  there  must  be  a  rc- 

(n)  4M0«1.  «40.  "*«t  C    M- 

70 


542  Forcible  Entry  and  Detainer,        [Chap.  XXI  I. 

cord,  whicli  must  be  in  writing,  to  do  all  this  and  not  a  verbal  plea. 
Upon  which  traverse  tendered,  the  justice  shall  cause  anew  jury  to  be 
returned  l^y  the  sheriii",  to  try  the  traverse;  which  may  be  done  the 
next  day,  but  not  the  same  day  {a). 

It  seenieth,  that  he  who  tendereth  the  traverse,  shall  bear  all  the 
charges  of  the  trial ;  ar^d  not  the  king,  or  the  party  prosecuting. 

And  "  if  such  forcible  entry  and  detainer  be  found  before  such  jus- 
tice, then  the  justice  shall  cause  to  reseise  the  lands  and  tenements  so 
entered  or  holden,  and  shall  restore  the  party  put  out  to  the  full  pos- 
session of  the  same."     8  //.  6.  c.  9.  s.  3. 

The  said  Justice.']  It  seems  to  be  agreed,  that  no  other  justices  of 
the  peace,  except  those  before  whom  the  indictment  shall  he  found, 
shall  have  any  power,  either  at  the  sessions  or  out  of  it,  to  make  any 
award  of  restitution  (6). 

Shall  cause  to  reseise.]  And  the  justice  may  break  open  the  house 
by  force,  to  reseise  the  same;  and  so  may  the  sheriff  do,  having  the 
justice's  warrant. 

Reseise.]  That  is,  shall  remove  the  force,  by  putting  out  all  such 
©fl'enders  as  shall  be  found  in  the  house,  or  upon  the  lands,  that  enter- 
ed or  held  with  force  (c). 

Jnd  shall  restore  the  Party  put  out.]  And  this  he  may  do  in  his 
own  proper  person  :  or  he  may  make  his  warrant  to  the  sheriJOf  to  do 
it  ((0- 

And  by  21  /.  c.  15.  it  is  enacted,  "  That  such  judges,  justices,  or 
justice  of  the  peace,  as  may  give  restitution  unto  tenants  of  any  estate 
of  freehold,  may  give  the  like  unto  tenants  for  term  of  years,  ten- 
ants by  copy  of  court-roll,  guardians  by  knight's  service,  tenants 
by  elegit^  statute  merchant  and  staple,  of  lands  or  tenements  by  them 
so  holden,  which  shall  be  entered  upon  by  force,  or  holden  of  them  by 
force." 

How  punishable  on  a  certiorari. — Although  regularly  the  justices  only 
who  were  present  at  the  inquiry,  and  when  the  indictment  was  found, 
ought  to  award  restitution ;  yet  if  the  record  of  the  presentment  or  in 
dictment  shall  be  certified  by  the  justice  or  justices  into  the  King's 
Bench,  or  the  same  presentment  or  indictment  be  removed  or  certified 
thither  by  certiorari,  the  justices  of  that  Court  may  award  a  writ  of 
restitution  to  tlie  sheriff,  to  restore  possession  to  the  party  expelled  ;  for 
the  justices  of  the  King's  Bench  have  a  supreme  authority  in  all  cases  of 
the  crown  (c). 

Also  where  upon  removal  of  the  proceedings  into  the  King's  Bench 
the  conviction  shall  be  quashed,  the  Court  will  order  restitution  to  the 

(a)  Dalt.  c.  133.  (6J  1  H.  P.  C.  c.  fi4.  s.  SO.  (c)  Dalt.  c   ISO. 

K<i)  1  H.  P.  C.  c,  G.l.  a.  49.  (c)  Dalt.  c.  Hi. 


Forcible  Entry  and  Detainer. 


.»i.^ 


j)arty  injured.  As  in  the  case  of  the  A',  v.  Junes,  M.  ?>(!.  aronvictiun 
of  foicil)le  entry  was  qiiaihed  for  tlic  old  exception  of  vieisuu:^'-  or  tf- 
/icmeiit,  l>y  reason  of  the  uncertainty,  hut  the  restitution  uas  opposed, 
on  an  alli(hivit  that  thr  parly's  title  (uliich  was  by  lease)  was  cxpire«l 
fincc  the  conviction.  But  the  Court  taid,  tliey  liad  no  discretionary 
i)ow  er  in  this  case,  but  were  bound  to  award  restitution  on  quasliing  tlic 
convict io!i  (^0' 

JIoiv  punishable  as  a  Riot. — If  a  forcible  entry  or  detainer  shall  be 
made  by  three  persons  or  more,  it  is  also  a  riot,  and  may  be  proceeded 
against  as  such,  if  no  inquiry  hath  before  been  made  of  the  force  (6). 

F«r  Precedents  of  the  Forms,  see  2  JJuni's  Justice, 

(■a)  1  Sir.  474.  [b)  Datt    C.  44 


[  544  ] 


CHAPTER  XXIU. 


Of  Remedies  against  third  Persons  ;  nherein  of  Obstruction 
of  a  Right  of  Way, 


A  WAY,  or  a  right  of  going  over  another  man's  ground  has  been 
before  noticed  in  Chap,  V.  tScct.  II.  among  other  incorporeal  here- 
ditaments. 

In  such  private  ways  a  particular  man  may  have  an  interest  and  a 
right,  though  another  be  the  owner  of  the  soil  (a). 

This  may  be  grounded  on  a  special  permission,  as  when  the  owner 
of  the  land  grants  to  another  a  liberty  of  passing  over  his  grounds,  to 
go  to  church,  to  market,  or  the  like  ;  in  which  case  the  giit  or  grant  is 
particular  and  confined  to  the  grantee  alone  ;  it  dies  with  the  person, 
and  if  the  grantee  quit  the  country  he  cannot  assign  over  his  right  to 
any  other,  nor  can  he  justify  the  taking  another  person  in  his  com- 
pany (//). 

A  way  may  also  be  l)y  prescription,  as  if  all  the  inhabitants  of  such 
a  hamlet,  or  all  the  owners  and  occupiers,  of  such  a  farm,  have  in)uie- 
morially  used  to  cross  such  a  ground,  for  such  a  particular  purpose;  for 
this  immemorial  usage  supj)oses  an  original  grant,  where!  ty  a  right  of 
way  thus  appurtenant  to  lands  or  houses  may  be  clearly  created  (r). 

A  right  of  way  may  also  aiise  by  tjcX  and  operation  of  law  ;  for  if  a 
man  grants  me  a  piece  of  ground  in  the  middle  of  his  field,  he  at  the 
same  time  tacitly  and  impliedly  gives  me  a  way  to  come  at  it  ;  and  I 
may  cross  his  land  for  that  purpose  without  trespass  ;  for  »hen  the  law 
doth  give  any  thing  to  on^,  it  giveth  impliedly  whatsoever  is  necessary 
for  enjoying  tlic  same  (r/).  Therefore  when  one,  (even  as  trustte) 
conveys  land  to  another  to  which  there  is  no  access  but  over  the 
grantor's  land,  a  right  of  way  passes  of  necessity  as  incidental  to  the 
grant.  So  also,  if  the  owner  of  the  closes,  having  no  way  to  one  of 
them  but  over  the  other,  part  with  the  latter  without  reserving  the 
way,  it  should  seem  that  it  will  be  r*  served  for  him  by  operation  of  law. 
So  also  under  a  grant  of  a  free  and  convenient  way  for  the  purpose  of 
conveying  oats,  among  other  articles,  the  grantee  has  a  right  to  lay  a 
framed  wagon-way  {e). 

(a)  2  Bl.  Com  35.  (fc)  Ibid.  (r.)  Ibid.  3G.  (d)  Ibid.  (e)  3  T.  R-  50. 


I 


Of  Obslriulinn  of  a  Jiii^ht  of  //<///.  .,1.1 

Disfiirbatice  of  ways  primipiilly  haiiiicriclli  when  u  person  v.  Iio  IpiIIj 
.1  rii^Iit  (if  way  over  aiiotlicr's  grouiul!?,  Ijy  f;raiit  or  iircscriptinn,  is  oIk 
striictctl  l)y  enclosures  or  other  ohslacles,  or  by  ploughing  acroM  it ;  hy 
^vliicli  means  he  cannot  enjoy  his  riglit  of  way,  or  at  least  nut  in  f^o 
connuodions  a  manner  as  he  might  have  done  (^f). 

If  this  be  a  way  annexed  to  his  estate,  and  the  ol)^lruction  is  made 
by  the  lcnai)t  of  the  lanil,  this  brings  it  to  another  species  of  in 
jury  :  for  it  is  then  a  nuisance  for  which  an  assize  will  lie  (/!»). 

iiut  if  the  right  of  way,  thus  obstructed  by  the  tenant,  ])C  only  in 
grof-s  (that  is,  annexed  to  a  man's  persrin,  and  unconnected  with  any 
lands  or  tenements),  or  if  tlie  obstruction  (jfa  way  liolonging  to  a 
house (jr  land  is  niatle  by  a  stranger,  it  is  then  in  either  cose  merely  u 
disturbance:  for  the  ol)st  ruction  of  a  way  in  'zxo^--  i-  no  detriment  to 
any  lands  or  tenements,  and  Ihercforc  does  not  full  under  the  legal 
notion  of  a  nuisance  which  umst  be  laid  ad  nocuun nlum  li'x-rtji  tcncr 
mentis,  and  the  obstruction  of  it  by  a  stranger  can  in:ver  tend  to  put 
the  right  of  way  in  dispute  {<). 

The  remedy  tliercfore  for  these  disturbances  is  nol  by  .i>  ...<  .*.  uiiy 
real  action,  but  by  the  universal  remedy  of  action  on  the  ca.we  to  recov- 
er damages  {d  . 

Caar  and  trespass  for  distitrhing  a  right  of  wa;;. —  V  ri^ht  of  way, 
liowevcr,  is  as.oftcn  contested  in  an  action  of  jrespass. 

In  an  action  on  the  case  for  spoiling  the  plaintiu'.-^  way  witii  tlic  dc- 
fend.mrs  carria:;e;,  the  defendant  may  justify  i!;oing  alon^  the  way 
^v  it h  the  carriages  of  a  third  person  having  a  right  to  ■'■>  ,i'n:ig  tlie 
.vay  (e). 

But  under  aright  of  way  over  a  close  to  a  particular  piacc,  a  man 
cannot  justify  going  beyond  the  place. 

'i'iu're.oru  if  a  defendant  justify  [)assing  along  a  [)riva(e  way  under  a 
iglit  of  way  to  a  close  called  ./.  the  plaintiif  may  reply  that  he.  ucnt 
beyond  A.  ( /"). 

So,  it  is  not  a  ,ii;ood  justification  in  trespass  that  tlic  defendant  ha 
a  right  of  way  over  part  of  the  |)laintiil's  land,  and  that  he  hatl  gone 
upon  the  adj  lining  land,  because  the  way  was  iuipissible  frun  bein^ 
•  'vcrflowed  by  a  river:  for  he  who  has  tho  use  of  a  thing  ought  to  r'. 
pair  it ;  and  in  the  principal  case,  for  aught  that  appeared,  the  ovc:- 
ilowing  might  have  liappened  by  the  n-^lcct  of  the  d.efcndant;  and  it 
did  nut  appear  that  tlie  defendant  had  no  other  road  (g-).— Highway,', 
however,  are  governed  by  a  diiiercnt  principle  :  they  arc  for  the  pu.b- 
lic  service,  and  if  the  usual  tract  is  impassable,  it  is  for  tiie  geucral 
good  that  people  should  be  entitled  to  pass  in  another  line  [h^]- 

<n;  3  Bl.  Com    r.Jl.        (6)  Ihi.l.         (ol  Ibid.  '4)  IbiJ.  242.  (O  I-utW.  \4X,  1  LA  HlX*".  -* 

.'/,,ll)i(l.  (r;  Dou'.  71.V  ,>j  IT   «.»:«. 


546     Of  Obstruction  of  a  Right  of  Way.  [Chap.  XXIIL 

A  man  may  prescribe  for  a  way  for  himself  and  all  those  whose  estate 
he  hath,  without  shewing  that  the  way  is  appurtenant  to  his  estate : 
and  if  he  states  that  he  was  seised  of  two  closes,  and  that  he  and  all 
those,  ^c.  had  a  right  of  way  "  tanquam  ad  tenementa  spectantemy'  the 
Court  will  reject  these  words  as  surplusage  (a). 

In  trespass,  where  no  evidence  appeared  to  shew  that  a  way  over  an- 
other's land  had  been  used  by  leave  or  favour  or  under  a  mistake  of  an 
award  which  would  not  support  the  right  of  way  claimed,  such  an 
usage  for  above  twenty  years  exercised  adversely  and  under  a  claim 
of  right,  is  sufficient  to  leave  it  to  the  jury  to  presume  a  grant  which 
must  have  been  made  within  t^venty-six  years,  as  all  former  ways  were 
at  that  time  extinguished  by  the  operation  of  an  Inclosure  Act  (6). 

A  claim  of  a  prescriptive  right  of  way  from  J.  over  the  defendant's 
close  into  D.  is  not  supported  by  proof  that  a  close  called  C.  over 
which  the  way  once  led,  and  which  adjoins  to  D.  was  formerly  posses- 
sed by  the  owner  of  close  A.  and  was  by  him  conveyed  in  fee  to  an- 
other, without  reserving  the  right  way ;  for  thereby  it  appears  that 
the  prescriptive  right  of  way  does  not,  as  claimed,  extend  unto  D.  but 
stops  short  at  C  (c). 

But  where  in  trespass  quare  clausum  fregit  the  defendant  prescribed 
for  an  occupation  way  from  his  own  close  "  unto,  through  and  over" 
the  locus  in  quo  *'  to  and  unto"  a  certain  highway,  Src.  such  plea  may 
be  sustained,  though  it  appeared  that  one  out  of  several  intervening 
closes  was  in  the  possession  of  the  defendant  self  {d). 

However,  under  a  grant  of  a  way  from  A.  to  B.  "  in,  through  and 
along"  a  particular  way,  the  grantee  is  not  justified  in  making  a  trans- 
verse road  across  the  same  (c). 

^uare  obstruxit. — Another  remedy  which  the  law  affords  in  cases  of 
d  similar  kind,  is  by  writ  of  <7Mrtrc  oij;^rMa;if. 

This  writ  lay  for  him  who,  having  a  liberty  to  pass  through  his 
neighbour's  ground,  could  not  enjoy  his  right,  because  the  owner  had 
so  obstructed  it  (/). 

It  lies  in  the  nature  of  a  writ  of  right  close,  {de  recto  clausot  directed 
to  the  lord  or  bailiffs  of  a  manor  of  ancient  demesne  (g). 

(«;  1  Ld,  Rayra.  75.  (6; 3  East's  R.  294.  (c)  1  East's  R.  377. 

Id)    Ibid.  381.  [cited]  et  vide  8  T.  R.  80.  (t)  IT.  R.  550.  C/)  Pleta,  L.  4.  C.  26. 

<S)  F.  N.  B,  1 IJ.  L.  Com.  Dig.  in  Toce. 


Cril  J 


CIIATTEn  \XI\ 


Of   Liahilili/   lo  repair  a  Church,    and  of  Eii^ht  to  Pen 

Ihcriin. 


OF  comon  right,  tliat  is,  l>y  the  ancient  canon  and  civil  l;i\v,  flir 
parson  ought  to  have  repaired  the  uholc  church  ;  and  it  is  by  the  cus- 
tom of  England  only  that  the  parish  repairs  the  l)ody  (a). 

In  one  case  the  Court  said,  that  the  repairing  of  the  church  is  a  real 
charge  upon  the  land,  hit  the  owner  live  where  he  will  (A). 

But  in  a  subsequent  case  it  Mas  holdcn,  that  the  occupier  of  hnd  in 
a  parisli  shall  !)e  rated  to  the  repairs  of  liic  church,  and  not  the  land- 
lord living  out  of  the  parish.  So,  it  was  said,  if  a  man  take  a  lease  of 
a  stall  in  a  market-town  wlierc  he  uses  once  a  week  to  sell  liis  wares, 
but  lives  in  another  parish,  he  shall  not  be  charged  tow  ards  the  repairs 
of  the  cliurch  in  that  niari:ct-t'jwn  (r). 

So,  church  ornaments  are  a  personal  char-^e  upon  the  inhabitants, 
ant!  not  upontho«c  who  live  elsewlierc,  though  they  occupy  lamls  in 
that  parish  [d). 

The  paying  towards  the  repairs  of  a  chapel  of  ease  will  not  prevent 
the  churchwardens  from  proccedini;  in  the  spiritual  court  fornon-pay- 
mcnt  of  a  rate  for  rej)airing  tlie  mother  church  (r).  Tlic  ir.aking  of 
church  rate  is  a  subject  of  ecclesiastical  jurisdiction  ;  wliereforc  a  man' 
ddwus  to  the  churchw  ardens  to  make  such  i  te  w  as  refused  (  /"). 

A  libel  was  entered  in  llie  Episcopnl  Court  at  Evrlrr,  against  one  for 
liot  payin::  a  cluirch-rateat  ftjlurss.  Pleathut  thecorporaiion  of  V.  was 
bound  to  repair,  and  it  appeared  that  it  was  the  first  rate  ever  made. 
A  prohibition  hadl)een  moved  for  on  the  ground  (hil  (he  plea  put  in  is- 
sue matter  of  preicriplion.  C/'/7//;Ashc\veil  cause.  Lord  Kftn/cn  raid,  an 
injividual  may  be  subject  to  the  repairof  the  aisle,  or  any  other  pai1  of 
a  chr.rch',  by  jircscriptlon  ;  so  ronu  stmh,  of  the  whole  church,  rn  thit 
the  pariMdoners  may  not  be  rateal)le,  ami  so  of  a  corporation  (r-).  li 
therefore  ctrt  a  in  funds,  vested  in  a  coriH>rati^n  who  iiavc  afway?  !>fen 
ccustomcd  to  the  repair  of  the  church,  p^ove  inadequate  In  that  pur- 

.T>  l»  Mvl.  Bi  •.  Mftd   Il8.  ( 


513     Of  liahililij  to  repair  a  Church,  cS>.     [Chap.  XXIY. 

l)0?e,  lli8  inhaLntants  arc  not  com.  semb.  liable  to  a  rate,  but  the  funds 
must  be  applied  as  far  as  they  will  go,  and  the  aid  of  Parliament  be  re- 
sorted to  lor  relief  in  respect  to  the  sum  wanted  ;  in  which  case  Par- 
liament would  probably  create  a  rate  on  the  parishioners,  if  any,  and 
if  there  were  none,  would  grant  a  certain  sum  («). 

An  individual  may  have  a  prescriptive  right  to  a  seat,  Src.  in  a 
church  which  might  be  in  respect  to  his  house,  antl  its  inhabitants, 
even  though  it  be  situated  in  another  parish  ;  and  not  in  respect  to  his 
lauds,  and  the  sheep  and  horses  thereon :  ])ut  the  right  to  repair  a  part 
or  the  ■\\hole   of  the   church,  may  well  be  in  respect  of  lands  (i). 

A  person  may  prescribe  for  a  pew  in  the  chancel  of  a  church  (r). 

But  there  cannot  be  a  gift  of  a  pew  v/ithout  a  faculty :  and  a  facul- 
ty to  a  man  ami  his  heirs  is  bad  {d). 

However,  if  a  faculty  be  annexed  to  a  messuage,  it  may  be  trans- 
ferred with  the  messuage  to  another  person  {c). 

A  faculty  may  be  granted  even  for  exchanging  seats  in  a  cliurch  {/). 

A  scat  in  a  church  niay  be  annexed  to  a  house  eitlier  by  a  faculty, 
cr  liy  prescription;  and  from  long  uninterrupted  usage  a  faculty 
may  be  presumed  (r/). 

It  is  impossible  to  determine  a  priori^  wlvat  evidence  will  or  will  not 
be  sufficient  to  support  such  a  right;  it  must  vary  in  each  particular 
case. 

Evidence  of  continued,  possession  for  thirty-six  years,  where  the 
pew  was  claimed  as  appurtenant  to  a  messuage,  was  deemed  good 
presumptive  evidence  of  a  faculty  (//). 

So,  uninterrupted  possession  of  a  pew  in  the  chancel  for.  twenty- 
eight  years,  unexplained,  is  presumptive  evidence  of  a  prescriptive 
right  to  the  pew,  in  an  action  against  a  wrong  doer:  which  presump- 
tion however,  may  be  rebutted  by  proof  that  prior  to  that  time  the 
pew  had  no  existence  (/). 

But  possession  alone  of  :  pew  in  a  church,  though  for  above  sixty 
years,  was,  in  an  antecedent  case,  holden  not  to  be  a  sufficient  title  to 
maintain  an  action  on  the  case  even  against  a  wrongdoer,  for  disturb- 
ance in  the  enjoyment  of  it :  but  that  the  plaintijT  must  prove  either  a 
prescriptive  right  or  a  faculty,  and  should  claim  it  in  his  declaration  as 
appurtenant  to  a  messuage  in  the  parish.  For  bare  possession  can  nev- 
er give  a  right ;  because  every  parishioner  has  a  right  to  go  into  the 
church :  and  therefore  it  was  the  plaintiif  s  own  fault  if  he  did  not 
gain  to  himself  a  complete  title  to  a  pew,  which  he  might  do  either  by 
applying  to  the  ordinary  for  a  faculty,  or  to  the  minister  or  church- 
wardens to  allot  him  a  seat  in  the  church.     If  bare  possession  Mere 

(n)  Cro.  Eliz.  859,  IN'ote — Tliere  is  nolliiDg  in  this  Case  that  supports  tlie  aljove  Proposition. 

(b^  Cr.).  Jac.  300.  (CI  6  T.  R.  2a7.  (d)  1  T.  R.  431.  a  [.0  43:'.  (e)  Iljid.  431. 

'./;  Ibid.  {£)  5'r.  R.  237.  (A;  1  T.  R.431.  n.  [a].  {i)  3  T.  R.  297. 


Chap.  XXIV.]     Of  lialiilUij  to  repair  a  Church,  S'c.         .OlO 

allowed  to  be  a  siiHlcicnt  litlc,  it  would  hi' an  rticonra^cinciil  to  coiu- 
niit  disorders  in  the  clmrcli  ;  lor  disputi-s  woidd  frrrjutiitiy  aii.c  re- 
specting the  possession  {n). 

Note. — Trespass  will  not  lie  for  eiiterini;  into  a  jicw,  because  the 
plaintill"  li;is  not  the  exclusive  possession  ;  tlie  possession  uf  tlie  rlinrrh 
being  in  the  parson  ;  wherefore  in  case  for  such  disturbance,  a  right  by 
prescription  or  faculty  must  be  proved  (J>). 

liut  though  the  possession  of  the  church  is  in  the  ])arson  (f>r  the 
vliole  church  and  chiirch-yard  are  the  rector's  frrelold.)  yet,  where  a 
rector  was  cited  ill  the  episcopal  consisti)rid  court  to  sliew  cause  why 
the  ordinary  should  not  i:;rant  to  a  parishioner  a  faculty  for  stoppinij 
up  a  window  in  a  church,  against  wliich  it  was  proposed  to  erect  a 
monument,  to  tlie  grant  of  which  the  rector  dissented,  nolu  ifhstand- 
ing  which  the  court  below  were  proceeding  to  grant  the  faculty  uilh 
the  consent  of  the  ordinary  ;  it  was  held  to  be  no  i^roimd  for  a  prohi- 
bition :  but  mere  matter  of  appeal  if  the  rector's  reasons  for  dissiiiting 
were  improperly  over-ruled;  for  as  yet,  no  common  la\\  right  >\as 
touched  which  called  upon  the  Court  to  prohibit  the  ecclesiastical  court 
from  proceeding  to  grant  a  faculty  ;  whidi  faculty  was  no  more  than  a 
licence  from  the  ordinary  himself  to  do  the  act  proposed,  and  wouhl 
not  bind  the  rector  against  his  consent,  if  by  law  his  consent  were 
materia!  (r). 

(a)  I  T.  K.  no.  (h)  Ibid.  '.c.nEirtU.  :17. 


n 


i 


[  •wi  1 


APPENDIX. 


»*« 


PRECEDENTS  OF  AGREEMENTS,  &( 


Ai^reement  for  granting  a  fjtasc  of  a  House  and 

Field, 

ME;\I0RANDU.M  of  an  agreement  entered  into  this 
clay  of  1801,  between  y/.  li.  of        of 

the  one  part  and  C.  D.  of  of  the  other  part,  where- 

by the  said  A.  B.  agrees  by  indenture  to  I)e  executed  on  or 
before  Michaehnas  day  next,  to  demise  and  let  to  the  said 
C.  D.  a  messuage  or  tenement,  uith  the  garden  and  ap- 
purtenances thereto  belonging,  situate,  lying,  and  being 
in  in  the  parish  of  in  the  county  of         now 

or  late  in  the  occupation  of  together  with  all  that 

field  or  close,  situate,  lying,  and  being  in  aforesaid, 

called  or  known  by  the  name  of  now  or  late  in  the 

occupation  of  to  hold  to  the  said  C.  D.  his  execu- 

tors, administrators,  and  assigns,  from  ^Michaelmas  day 
aforesaid,  for  and  during  the  term  of  years, 

at  or  under  the  clear  yearly  rent  of  pounds,  payable 

half  yearly,  clear  of  all  taxes  and  deductions  except  the 
land  tax.  In  which  lease  there  shall  be  contained  cove- 
nants on  the  part  of  the  said  C.  J),  his  executors,  admini- 
strators, and  assigns,  to  pay  the  rent,  and  to  pay  all  taxes, 
rates,  and  assessments  (except  the  land  tax),  to  repair 
the  premises  (except  damages  by  fire),  to  deliver  the  same 
up  at  the  end  of  the  term  in  good  repair  (except  as  last 
aforesaid),  with  all  other  usual  and  reasonable  covenants, 
and  a  proviso  for  the  re-entry  of  the  said  C.  D.  his  heirs 
or  assigns,  in  case  of  non-pay mejit  of  the  rent  for  the 
space  of  days  after  either  of  the  said  rent  days,  or 

the  non-performance  of  the  covenants. — And  there  shall 
also  be  contained  a  covenant  on  the  part  of  the  said  ./•  /?. 
his  heirs  and  assigns,  for  quiet  enjoyment.     Atid  the  said 


552  Precedents  of  Agreements. 

C.  D.  hereby  agrees  to  accept  of  the  said  lease  on  the 
terms  aforesaid. — And  it  is  mutually  agreed  that  the 
costs  of  this  agreement,  and  of  making  the  said  lease  and 
a  counterpart  thereof,  shall  be  borne  by  the  said  parties 
equally. 

In  witness,  ^^c. 


Agreement  for  granting  a  Farming  Lease. 

MEMORANDUM  of  an  agreement  made  this 
day  of  in  the  year  between  jd.  B.  Src 

of  the  one  part,  and  C.  D.  ^c.  of  the  other  part,  -where- 
by it  is  agreed,  that  the  said  J.  B.  shall,  on  or  before  the 
25th  day  of  ]March  now  next  ensuing,  make  and  execute 
unio  the  said  C\  D.  his  executors,  administrators,  and  as- 
signs, a  good  and  valid  lease  of  all  that  messuage,  Si.c. 
and  all  those  several  closes,  pieces,  or  parcels  of  land,  &c. 
Avith  the  appurtenances  thereunto  belonging,  for  the  term 
of  years,  from  the  said  25th  day  of  March,  at  the 

Ata yearly  rent,    yearly  Tcnt  of  pounds,  payable  half  yearly  clear  of 

all  deductions  for  taxes,  or  any  other  account  whatsoever 
(except  the  land  tax),  the  first  payment  of  the  said  rent  to 
be  made  at  Michaelmas  day  next,  and  at  or  under  the  fur- 
mit  per  iTrtiior    ^^^^  yearly  Tcnt  of  51.  for  every  acre,  and  so  in  proportion 
piou£iiu)s.  for  a  less  quantity  of  meadow  or  pasture  ground  which 

shall  be  ploughed  or  converted  into  tillage  contrary  to  a 
covenant  to  be  contained  in  the  said  lease,  as  hereinafter 
directed  :  the  first  payment  of  the  last  mentioned  rent  to  be 
made  on  the  first  half  yearly  rent  day  after  such  ploughing 
and  conversion  into  tillage  as  aforesaid  ;  and  in  the  said 
ufr?  l^oveiilms^on  ^^^^^  thcrc  shall  be  contained  covenants  on  the  part  of  the 
the  party  oi  itie  te-  g^j^^  ^»^  j-^  j^jg  cxccutors,  administrators,  and  assigns,  to 

pay  the  aforesaid  rents,  and  to  pay  all  taxes,  rates,  and  as- 
tlxes*^  '^"^  ^""^    sessments  (except  the  land  tax), — for  doing  all  manner  of 
repairs  to  the  said  buildings,  hedges,  ditches,  rails,  and 
Kn<iiord'ni'^"iDg     o^^^^  fences  (the  said  A.   B.  his  heirs   or  assigns,  pro- 
viding upon  the  premises,  or  within  miles  thereof, 
rough  timber,  bricks,  tiles,  and  lime,  for  the  doing  there- 
of, to  be  conveyed  by  the  said  C.  D.  his  executors,  ad- 
-wTtate^of      niinistrators,  or  assigns). — For  permission  for  the  said 
J.  B.  his  heirs  or  assigns,  at  all  seasonable  times,  to  view 
the  state  of  repairs.— That  the  said  C.  D.  his  executors, 
6''       administrators,  or  assigns,  shall  not  plough  or  convert  in- 
to tillage  any  of  the  closes  of  meadow  or  pasture  ground 


timoer,  Jic.) 


Prectdcnts  of  As;rnments,  .'trt'i 

without  the  licence  of  the  said  J.  JL  his  heirs  or  afsigns, 
in  uritin^  fust  oMaiiied.— Thai  the  saiil  C.  J),  hin  cxecu-  {JZl".?,"^ "" 
tors  or  adiniiiistrators,  shall  not  carry  oti"  from  the  farm 
any  hay,  straw,  or  other  fodder,  and  that  the  said  C.  I). 
his  executors,  administrators,  or  assigns,  shall  sprcatl  on  .'"" i^J*^V.-mJj^ 
some  part  of  the  said  lands  in  an  hushandlikc  manner,  all 
.  tlic  diinj;;,  manure,  and  compost,  which  shall  arise  from 
the  said  farm,  and  shall  in  all  respects  manage  and  ciilti-  i'),"'i„"'j;;;j^„;;;,™e 
vate  the  same  in  an  hushandlike  nianncr,  and  according  «"•'»•»"• 
to  the  usual  course  of  husbandry  used  in  the  ncij^hliour- 
hood,  and  shall  leave  all  the  diinj,',  manure,  and  compobt  l^.V^.r/'""* "' 
of  the  last  year,  for  the  mv  of  the  landlord  or  succeciling 
tenants. — That  the  said  C.  I),  his  executors,  administra- 
tors, or  assigns,  shall  not  cut  or  plasli  any  of  the  (piick  ,^,:|;,VertJr'**' 
hedges  under  years  growth,  and  shall  cut  or  plasli  '^"'"^'' 

those  at  seasonable  times  in  the  year,  and  at  the  time  of 
doing  thereof  shall  cleanse  the  ditches  adjoining  thereto,  [[("che^vT 
and  guard  and  preserve  the  hedges,  whicli  shall  be  so  cut 
anfl  plashed  as  aforesaid,  from  destruction  or  injury  by  cat- 
tl  •,  and  shall  also  at  all  times  guard  and  preserve  all  young 
hedges  and  young  trees  from  the  like  det-tniclion  or  in- 
jury.—That  the  Slid  C.  D.  his  executors,  administrators,  '^^^^'^^ZlHl"^ 
or  assigns,  shall,  in  the  summer  immeiliately  preceding  t^e  term  for*  crop 
the  determination  of  the  said  term  to  be  granted  as  afore- 
said, prepare  for  seed   in  an  hiisbandlike  manner  sr.ch 
part  of  *he  land  as  shall  be  in  a  course  of  fallow  and  fit 
to  l>e  sown  with  a  crop  the  ensuing  season,  and  lay  down 
vith  clover-secd  and  rye-grass  acres  of  tlie  arable  iil^"t,'"ew''Lc'"' 

land  which  shall  be  then  in  tillage,  sowing  upon  each 
acre  thereof  pounds  of  the  best  clover-seed  and 

bushels  of  the  best  rye-grass  seed.     Anil  in  the  said  lease  i^"!1^\^"u,t'iI 
there  shall  be  contained  a  proviso  fur  re-entry  by  the  said  *'""■*' 
A.  IJ.  his  heirs  or  assigns,  in  case  of  non-payment  of  rent 
for  the  space  of  days,  or  non-performance  of  th(; 

covenants,  or  in  case  the  said  C.  J),  his  executors,  admi- 
nistratore,  or   assigns,  shall   assign,  under-let,  or  other- 
wise dispose  of  the  said  premises,  or  any  part  thereof,  or 
do  commit  or  suffer  any  act  or  deed  w  hereby,  or  by  nuans 
whereof  the  said  premises,  or  any  part  thereof,  shall  !>«• 
assigned,  under  let,  or  disposed  of,  without  the  consent 
in  writing  of  the  said  y^.  IL  his  heirs  or  assigns,  first  ob- 
tained—And there  sliall  be  contained  covenants  on  the  tTL7ylil*o(\t>9 
part  of  the  said  A.  B.  his  heirs  and  assigns,  for  quiet  en-  l.'!!^/.j'',c:ir''"''^ 
joymcnt. — That  the  said  A.  B.  his  heirs  or  assigns,  shall,  t«  provi :c  tin». 
upon     days  notice,  provide  and  allow  to  the  said  C.  D.  his  p".^!''   ""*" 


554  Precedents  of  Agreements. 

executors,  administrators,  and  assigns,  upon  the  premises 
or  within  miles  thereof,  all  such  rough  timber,  bricks, 
tiles,  and  lime,  as  shall  be  necessary  for  the  repair  of  the 
premises :  the  said  materials  to  be  conveyed  at  the  expense 
of  the  said  C.  D.  his  executors,  administrators,  and  as- 
t^hrvrtlVts^oV  signs— That  the  said  A.  B.  his  heirs  and  assigns,  shall 
e^ of uieTeiL"'*  permit  the  said  C.  D.  his  executors,  administrators,  or. 
assigns,  to  have  the  use  of  the  great  barn,  the  stable  for 
four  horses  adjoining,  and  the  stack-yard  and  farm-yard, 
until  after  the  expiration  or  determination  of  the 

said  term,  for  the  convenience  of  threshing  out  the  last 
year's  crops  of  corn  and  grain,  and  feeding  his  or  their  cat- 
tle with  the  straw  and  fodder,  so  that  the  same  may  be 
made  into  manure  to  be  left  on  the  said  premises  as  afore- 
said ;  and  also  some  convenient  room  in  the  farm-house  for 
his  or  their  servants  to  lodge  and  diet  in,  until  the  time 
aforesaid,  without  any  recompense  being  made  for  the  ' 
same  respectively. 
In  witness,  &c. 


Agreement  for  Lodgings, 

MEJMOKANDUM  of  an  agreement  entered  into  this 
day  of  1804,  by  and  between  E.  F.  of, 

^c.  and  G.  H.  of,  Src,  whereby  tije  said  E.  F.  agrees  to 
let,  and  the  said  G.  H.  agrees  to  take,  the  rooms  or  apart- 
ments following:  that  is  to  say,  an  entire  first  floor,  and 
one  room  in  the  attic  story  or  garrets,  and  a  back  kitchen 
and  cellar  opposite,  with  the  use  of  the  yard  for  drying 
Jiuen,  or  beating  carpets  or  clothes,  being  part  of  a  house 
and  premises  in  which  the  said  E.  F.  now  resides,  situate 
and  being  in  To  have  and  to  hold  the  said  rooms  or 

apartments,  and  the  use  of  the  said  yard  as  aforesaid,  for 
and  during  the  term  of  half  a  year,  to  commence  from 
next  after  the  date  hereof,  at  and  for  the  yearly  rent  of 
pounds  oflawful  money  of  Great  Britain,  payable 
quarterly,  by  even  and  equal  portions ;  the  first  quarterly 
payment  to  be  made  on         next  ensuing  the  date  hereof: 
and  it  is  further  agreed,  that  at  the  expiration  of  the  said 
term  of  half  a  year,  the  said  G.  II.  may  hold,  occupy, 
and  enjoy  the  said  rooms  or  apartments,  and  have  the  use 
of  the  said  yard  as  aforesaid,  from  quarter  to  quarter,  for 
so  long  a  time  as  the  said  G.  H.  and  E.  F.  may  and  shall 
agree,  at  the  rent  of  for  each  quarter,  and  that  each 


Precedents  of  Aixninunls. 

party  1)C  at  liberty  to  quit  |)o?sc>?ion,  on  divine;  to  tljc  other 
a  quarter's  notice  in  writing  or  uariiiiis;.  And  it  is  also 
further  agreed  between  the  said  parties,  that  when  the 
said  G.  II.  .sliali  quit  the  premises,  he  shall  leave  them  in 
as  good  condition  and  repair  as  they  shall  be  in  on  his 
takiuij  possession  thereof,  reasonaljlc  wear  excepted. 
As  witness,  H-c. 

An  agreement  to  let  a  readij  furnished  Tjodixini:;. 

IMRAIORANDU-Mof  an  agreement  entered  into  tliis 
day  of       in  tlic   yrar  of  our  Lord       by    and  between 
J.   K.  of,  (^-r.  of,  the  one  part,  L.  M.  of,  (Vt.  of  Ih"  other 
part,  by  which  the  said  J.   K.  agrees  to  let  to  the  said 
L.  M.  a  room  or  apartment  up  pair  of  stairs  for- 

wards in  his  the  said  /.  K.'s  house,  situate  in 
street,  in  tlie  parish  and  county  aforesaid,  ready  fiu'nish- 
ed  ;  together  with  the  use  and  attendance  of  his 
servant,  in  connnon  w  itli  the  other  lodgers,  at  such  lioiirs 
and  times  when  lie  himself  can  spare       And  also  the  use 
of  a  cellar,  at  the  rent  of  pounds  of  lawful  money 

of  Great  Britain  per  quarter.  And  tlie  said  L.  M. 
agrees  to  take  the  said  room  or  apartment,  with  the  use  of 
the  servant  and  cellar  as  aforesaid,  at  the  rent  aforesaid, 
and  also  to  find  and  provide  for  himself,  all  niarmer  of 
linen  and  china  or  crockery  ware  whatsoever,  that  he  shall 
have  occasion  for,  and  that  if  he  shall  break  or  damage 
any  part  of  the  furniture  of  the  said  J.  K.  he  will  make 
good  or  repair  the  same,  or  pay  her  sufficient  to  enable  her 
to  put  the  same  in  the  same  pliglit  and  condition  as  they 
now  are  in.  And  it  is  further  agreed,  that  if  either  par- 
ty shall  quit  or  leave  the  premises,  he  or  she  shall  respec- 
tively give  or  take  a  quarter's  notice  or  warning. 
As  witness,  &.C. 

A  lease  for  Years  of  a  House  and  Lauds  in 
the  Country  with  an  Exeiptiun  of  Tne.,  and 
Special  CoKnants. 

THIS   INUENTUIIE    made  tlie         d  ly  of         in 
the  yc.ir  of  o«ir  Lord  and  in  the  year  of  the 

reign  of  our  Sovereign  Lord  Creorgc  tlie  Third,  b-lwecn 


55{j 


The  partlfr? 


The  considera- 
tiun. 


Tbe  demise. 


The  parcels. 


General  words. 


More  parcels. 


Exception  of 
trees,  &c. 


With  ingress,  kc. 
IVir  tbe  lessor,  fccc. 


Precedents  of  Ltcascs. 

J.  A.  of  the  one  part,  and  B.  B,  of  the  other  part,  wit- 
jjesseth,  that  for  and  in  consideration  of  the  rents,  cove- 
nants, provisoes,  and  agreements  hereinafter  reserved  and 
contained,  and  which  on  the  part  and  behalf  of  the  said 
B.  B.  his  executors,  administrators,  and  assigns,  are  to 
be  paid,  done,  and  performed,  he  the  said  J.  A.  hath  de- 
mised, granted,  and  to  farm  letten,  and  by  these  presents 
doth  demise,  grant,  and  to  farm  let  unto  the  said  B.  B. 
his  executors,  administrators,  and  assigns,  all  that  mes- 
suage, tenement,  or  farm  house,  late  in  the  possession  of 
E.  B.  and  those  t^vo  cottages  or  tenements,  now  or  late  in 
the  possession  of  F.  F.  and  G.  G.  or  their  assigns,  with 
the  appurtenances,  situate,  standing,  and  being  in  the 
parish  of  C.  and  H.  or  one  of  them,  in  the  said  county  of 
D.  together  with  all  and  singular  the  yards,  gardens,  or- 
chards, backsides,  barns,  stables,  out-houses,  edifices,  and 
buildings  thereunto  belonging,  and  also  all  those  several 
closes,  pieces,  or  pacels  of  arable  land,  meadow,  pas- 
ture, wood,  and  wood  ground,  containing  by  estimation 
acres  (be  they  more  or  less),  lying  and  being  in  se- 
veral parishes,  fields,  precincts,  and  territories  of  C.  and 
//.  or  one  of  them,  in  the  said  county  of  D.  to  the  said 
messuage,  tenement  or  farm-house  belonging,  and  there- 
with held,  used,  occupied,  and  enjoyed,  as  part  and  par- 
cel thereof  (except,  and  always  reserved  out  of  this  present 
lease,  unto  the  said  A.  A.  his  heirs  and  assigns,  all  timber 
and  timber-like  trees,  and  all  other  trees  whatsoever,  but 
the  fruit  trees  for  tkeir  fruit  only,  and  the  pollard  trees 
for  their  lops  and  tops  only,  which  now  are,  or  at  any 
time  or  times  hereafter  shall  be  standing,  growing,  and 
being  in,  upon,  and  about  the  said  leased  premises,  or 
any  part  thereof,  with  free  liberty  of  ingress,  egress, 
and  regress,  to  and  for  the  said  A.  A.  his  heirs*  and  as- 
signs, servants  and  workmen,  from  time  to  time,  and  at 


*  Where  the  lessor  has  the  freehold,  make  the  exception,  reservation,  &c.  to  ftim,  his 
heirs  and  assigns,  and  not  htirs,  executors,  administrators,  and  assigns,  so  he  may  cove- 
nant for  Aimie^/",  his  AeiVs  and  assi'i-ns,  and  it  is  sufficient  ;  executors  diUd  administrators 
are  superfluous;  they  are  his  assigns  in  law  of  course,  hut  have  nothing  to  do  with  the 
freehold  as  such  :  but  where  the  lessor  has  not  the  freehold,  then  malte  the  exception,  re- 
tervation,  kc.  to  Aim,  his  ereculors,  administrators,  and  assigns,  and  the  covenants  from 
him,  his  executors,  administrators,  and  assigns  ;  though  here  it  is  usual  to  make  him 
covenant  (or  himself ,  his  heirs,  executors,  administrators,  and  assigns,  that  Ae,  hisexeCN- 
tors,  administrators,  and  assig^ns,  shall  and  will.  &c.  in  which  case  the  heir  will  he  bound. 


UJl 


P red  (huts  of  Ltases. 

;ill  limes  thuini,'  (lie  Icrni  liercfiy  If;i5ecl,  llir  ?nnir;  to  fell, 
stock  up,  cut  (luwii,  lu'vv,  and  c  ury  uuay,  iu  ami  luiougli 
the  said  leaserl  prcmisef,  or  any  part  thereof,  dolns;  no 
w'vM  hurt  or  d)ni:ii;f  to  the  L^niii  and  f,'rass  of  the  said 
Ji.  li.  his  executors,  atiniiuistrator!:,  and  assigns,  and  alro 
oxc'jpt  to  the  Slid  J.  A.  his  Jieirs  and  a'siffiis,  at  all  time  -^niii'-oMr'* 
(lurinj;  the  tt'nn  hf^rel>y  leasrd,  free  lil>crly  to  enter  in'o, 
aiifi  n|)on  the  5,iid  premis'P,  anfl  every  part  thereof,  to 
vieu-  the  condition  of  llie  repairs  I  hereof)  to  have  amllo  hold  '''•''""i*»a' 
the  said  nussna^e,  tcn-nient,  or  farm-hoiise,  closes, 
jiiocpp,  or  parcels  of  aral>ic  land,  meadow,  p.isturc 
ground,  and  premises,  wilh  their  and  every  of  tljcir  ap- 
purtenances, (except  as  l>rfore  eitcppte«l)  mito  the  said 
B.  B.  his  executors,  adniinistritnrs,  and  assi^i^ns,  from  tlic 
feast  of  next  ensiiin'<  the  d.ite  .hereof,  for  and  during, 
and  unto  the  fu!I  end  and  term  of  years,  thence  next  '<"■>"■* 
ensuinci;-,  and  fuHy  to  !)C  Ct)mplete  and  vmicd,  //icldinff  and 
pfii/i/i^  therefore  yearly,  and^every  year  during  the  said 
term,  unto  the  said  //.  .7.  his  hdrs  or  asji^ns,  at  or 
in  his  now  dwehintj-house,  situate,  A'-r.  the  yearly 
rent  or  sum  of  /.  of  lawful  money  of  Great 

Brilain^vA  tiie  two  most  usual  feasts  or  days  of  payment 
in  the  year,  that  is  to  say,  the  feasts  of  and 

in  every  year,  the  first  payment  thereof  to 
hogin  and  he  made  on  the  feast  day  of  next  cnsu- 

liii^  the  date  hereof,  and  also  iii'ldiii'r  nnd  pnijing  thereof 
yearly,  and  every  yenr  Jiuiu--  tiie  suitl   term,  unto  the  '"""■/"r- 
said  A.  A.  his  heirs  antl  as^i^ns,  at  or  in  his  now  dwcll- 
in,u;-house,  situate,  cx-c.  the  yearly  rent  or  sum  of  /.  f*'.'" ",'.?'. 

of  lawful  money  of  Great  Britain  at  the  two  imst  usual  I, 
feasts  or  days  of  payn;eiil  in  the  year,  that'is  to  say,  the 
feasts  of  and  in  every  year,  the  first 

payment  thereof  to  he«,in  and  be  made  on  the  feast  day 
of  n.'Xt  ensiun^  the  dale  hereof,  antl  al^o^/Wr/-  .■^.^/■, ,';;,■  , 

in^  and  pnijin^  thereforu  yearly,  ai;d  e\ery  year  during  "'"^•■••'^ 
the  said  term,  unto  the  said  //.  //.  his  lieirs  arid  as-i;jns, 
on  the  days  and  place,  and  in  manner,  aforesaid,  (over 
and  above  the  said  yearly  rent  of  /.  h  're  in  b  •,orc 

rescrveil,)  for  every  acre  of  m''a(K)w  or  p/isfure  KC'^^nd 
hereby  \t,\?&(\,  that  the  said  B.  B'  hi?  executors,  admini- 
strators or  assigns,  siiail  ploui^n,  .<li:  up,  or  convert  into 
tilla-e,  the  sum  of  /.  of  hKe  m  ney,  and  f)  pro 

portionably  after  that  rate,  ftr  c\cry  ^rcjer  or  .ess  quan- 
tity than  an  arr^^,  the  In.  t  lymcnt  «>f  Ur  raid  /.  per 
acre  to  be  made  on  the  hr-t  <1  ^^  of  the  scj<\  fea^^tp  whir  ^ 


\5'S 


Precedents  of  Leases. 


Pruvi'O  on 
utii.-Iiayiiient. 


Wr  assignment 
I'Tthe  lessee 
witliout  con- 
e'ent,  the  lessor 
may  ns-eiiter. 


Tiie  lessee 
poveriSiits  in 
payment  oi 
rents. 


Aud  for  repairs. 


slial!  next  liappeu  after  the  ploughing  or  diggaig  up  any 
part  of  the  same  meadosv  or  pasture  ground.     Provided 
always,  nevertlieless,  that   if   it  shall  happen  that  the 
said  yearly  rents,  hereby  reserved,  or  either  of  them,  or 
any  taxes,  levies,  and  assessments,  which  shall  be  r-.4ed 
or  assessed  on  the  said  hereby  leased  premises,  (except 
land  tax)  shall  be  behind  and  unpaid  by  the  space  of 
twenty-one  days,  next  over  or  after  either  of  the  said 
feasts  or  da3's  of  payment,  whereon  the  same  ouglit  to 
be  paid  as  aforesaid,  (being  lawfully  demanded,  or  if 
the  said  B.  B.   his  executors,    or  administrators,   shall 
assign  over,  or  otherwise  depart  w  ith  this  indenture,  or 
the  premises  hereby  leased,  or  any  part  thereof,  to  any 
person   or    persons    whatsoever,    (except   the   said   two 
cottages,)    without   the    consent  of   the  said  J.  A.  his 
heirs  and  assigns,  first  had  and    obtained    in    writing, 
under  his  or  their  hands  and  seals  for  that  purpose,  then, 
and  in  either  of  the  said  cases,  it  shall  and  may  be  law- 
ful to  and  for  the  said  A.  A.  his  heirs  or  assigns,  into 
the  said  premises  hereby  leased,  or  any  part  thereof  in 
the  name  of   the  whole,  to  re-enter,   and  the  same  to 
have  again,  retain,  and  repossess,  and  enjoy,    as  in  his 
and  their  first  and  former  estate  or  estates,  any  thing 
herein  contained  to  the  contrary  thereof,  in  anywise  not- 
withstanding.    And.  the  said  B.  B.  doth  hereby  for  him- 
self, his  heirs,    executors,    administrators,    and  assigns, 
covenant,  promise,  and  agree,  to  and  with  the  said  A, 
A.  his  heirs  and  assigns,  in  manner  following,  (that  is  to 
say,)  that  he  the  said  B.  B.  his  executors,  administrators, 
and  assigns,  shall  and  will  well  and  truly  pay,  or  cause 
to  be  paid  unto  the  said  A.  A.  his  heirs  and  assigns,  the 
said  yearly  rent  of         I.  and  also  the  said  rent  of         /. 
per  acre,  per  annum,  for  ploughing  up  any  raeadovr,  or 
pasture,  as  aforesaid,  at  the  days,  times,  and  places,  and 
in  such  manner  as  are  herein  before  limited  and  appointed 
for  payment  thereof,  according  to  the  respective  reserva- 
tion thereof,  and  the  true  intent  and  meaning  of  these 
presents.     And  also  that  the  said  B.  B.  his  executors, 
adniiinstralors,  and  assigns,  shall  and  will,  at  his  and 
their  own  proper  costs  and  charges,  well  and  sufficiently 
repair,  maintain,  amend,  scour,  cleanse,  preserve,  and 
ieep  in  repair  the    said    messuage,    tenement  or  farm- 
house,  and  all    other    the  housts,   out-houses,  edifices, 
build in^^^s,  barns,  stables,  dove-houses,  gates,  rails,  pales, 
stiles,  hedges,  fences,  and    mounds,    belonging   to  the 


Prcrcfhnls  of  Lrasts.  5r)9 

said  hereby  Icascrl  prcnuFCS,   from  time  lo  time  diiriiiq 
tills  present  lease,  (lie  the  said  ./.  ./.  his  heirs  and  a':si:;ns, 
upon    request  and  notice  to   Ihdu    made,  finding  and 
alio\vini»-    on   the  said    premises,  or   within   four  miles'  ^,1"' ,n'','|I|;'^ '** 
distance  thereof,  all  roui,di  timber,  brick,  lime,  tiles,  and  '""'*^ 
all  other  materials  whatsoever  (except  straw)  for  doing 
thereof,  to  be  carried  to  the  said  liereby  leased  premise*, 
at  the  charge  of  tiic  said    7*.  li.  liis  executors,  admini- 
strators,   or   assii^ns, )     And   the   same  prcmiMS,  so   re- 
paired, atnended,  and  kept  in  repair,  as  aforesaid,  at  the 
end,  expiration,  or  other  so«jne,r  determination  of  this 
present  lease,  shall  and  w  ill  yield  up  unto  the  said  //.  A. 
his  heirs  or  assigns.     And  also  that  the  said  B,   B.  his  "^^^  "";"'  *■"'••. 
h'.irs,  executors,    administrators,    or  assigns,  shall   not,  ll',';,vra'.',"?r.^r. 
nor  will  at  any  time  durins^  this  ])resent  lease,  crop,  or  "!ay'J,',lrV''»iriTir 
sow,  above  two  years  to;^ether,  any  of  the  arable  lands  1:1* r'liVow  tn)lnj. 
and  closes  hereby  leased,  but  every  third  year  perniit  the 
same   to  lie  fallow  and  unsown.     And  that  it  shall  and 
may  be  lawful,  to  and  for  tiie  said  J.  A.  his  heirs  and 
assi^^ns,  with  servants,  horses,  plouglis,  carts,  and  otlier 
necessaries,  at  day  next  preceding:  the  expiration 

of  the    present   lease,   to  enter   upon   such    chises   and 
grounds,  parcel  of  the  said  hereby  leased  premises,  as 
then  ought  to  lie  fallow  and  unsown,  and  the  same  to 
plough,   fallow,   anti    manure,    and   to    have  the    grass, 
herbage,  sheep  walks,  and  sheep  comm:»ns  thereof,  and 
also   to  enter  upon  tlie  dun,:;   which  shnll  be  then  in   1  he 
j-ard  or  yards,  and  at  the  s;i!ne  time  to  have  the  dung  ;^,"f.*",' 
in  the  dove-house,  and  the  hen-diuig   in  the  hen-house. 
And   also  to   have  some  convenient   place  in  the  s.ud 
dwellinq-housp,   for  his  and  their  strvants  to  Iodide  and 
diet   in,  and  some  convenient  place  to  lay  hay  and  cliall' 
in,  and   some  convenient  stable  for  their  horses  to  stand 
and  be   in,  witliout  exlinoiinshn^.cnt  of  any  of  the  yearly 
rents  heroin  before  reserved,  and  witiiout  i^ivini;-  or  mak- 
ing  any   allo'.ance   or  satisfuction  for  the  sanie.     And  J,'.','".  , 
further,  that  the  said  B.  Jl.  his  executors,  ad-nnni^rators,  y".*!;" 
and  assigns,  shail  not  at  any  time  or  times  during  the 
last   two  years  of  the  sai  I   term,   sell,  give  away,   or 
otherwise  dispose  of  any  of  the  straw   uhich    shail   lie 
growing  and  arisinz  upon  the  said  leased  prcudes,  atul 
shall  not   burn  any  straw,  except  it  l<c  for  the.  lueessary 
singeing  of  his  and  their  hogs,  fcr  the  use  of  thrir  own 
families.     And  that  tiie  said   D.  II  his   executors,  ad- 
ministrators and  assigns,  shall  and  will  l.iy  in  and  in- 


Kilhm  llie  lut 


560 


Frcctdents  of  Leases. 


jtnd  to  u«e  the 
itjaiv  there. 


barr.  all  the  crops  of  grain,  which  shall  be  growing  and 
arising  upon  the  said  hereby  leased  prenii?fE,  in  every- 
year  of  the  said  term,  in  the  barns  and  rick-yards  be- 
longing to  t"ie  said  leased  premises,  and  not  elsewhere, 
and  the  same  there  thrash  out,  and  the  straw  and  stover 
which  shall  arise  tlierffrcm  and  t]ierel)y,  turn  into  the 
yard  and  yards,  and  the  same  feed  itp  w  ith  his  or  their 
cattle,  for  the  better  increase  and  niakhi^  of  dung,  and  the 
dung  and  soil  which  shall  arise  therel)y,  lay,  spread  and 
bestow  upon  the  herehy  demised  promises,  in  a  husband- 
like manner,  and  not  elsewhere;  and  shail  and  vull 
leave  unto,  and  for  the  use  of  the  said  J.  A.  his  heirs 
or  assigns,  all  the  dung  and  compost  which  shall  be 
made  on  the  said  leased  premises  the  three  last  years  of 
the  said  term,  which  sh )11  arise  from  the  tv.o  last  crops 
of  corn  and  grain,  for  manuring  the  premi-es,  or  other- 
Tvise  to  be  disposed  of  as  he  the  said  A.  A.  his  heirs 
and  assigns  shall  think  fit  and  convenient ;  and  that  the 
said  B.  B.  his  executors,  arliuinistrators,  and  assigns, 
shall  sow  the  three  last  years  of  this  present  lease,  one 
Tosoype!.'.,^r  ia  third  part  of  the  edse  crop  with  peas  or  vetches.     And 

tlie  latter  years.  •  nit  ^- 

that  the  said  ^.  B.  his  ex<^'Ciitors,  administrators,  and 
assigns,  shall  and  will,  at  all  times,  during  the  term 
hereby  leased,  endeavour  to  preserve  and  k^ep  the  dove- 
honse,  A\ith  a  good  flii^ht  of  pigeons,  dove-houce  like, 
and  at  the  end,  expiration,  or  other  sooner  determination 
of  the  said  term  of  years,  shall  and  will  give  up 

the  same,  so  preserved  and  kept,  into  the  hands  of  the 
said  A.  A.  his  heirs  and  assigns.  And  that  the  said  B.  B. 
his  executors,  administrators,  and  assigns,  shail  and  will, 
at  all  times  diiring  the  said  term  of  years  hereby 

leased,  bear,  pay,  and  discharge  all  such  taxes,  levies, 
and  assessments  whatsoever,  as  sl.all  be  taxed,  rated, 
levied,  or  assessed  upon  the  said  hereby  leased  prcndses, 
land  tax  only  excepted.  AndihvA,  he  the  said  B.  B.  his 
executors,  administrators,  and  assigns,  shall  not  nor  will, 
at  any  time  or  times  during  this  present  lease,  cut,  plash, 
or  new-make  any  of  the  hedges  belonging  to  the  herby 
leased  premises,  but  such  as  shall  be  of  tuelve  year's' 
growth,  and  those  only  at  seasonable  times  in  the  year  ; 
i*.vA  when  the  closes  and  ground  to  w  hich  such  hedges 
belong  shall  be  sown  with  \\heat,  rye,  or  barley,  on  a 
summer's  tilth,  or  be  closes  of  old  pasture,  and  after  the 
same  shall  have  been  cut,  plashed  or  new-made,  as 
aforesaid,  the  same  preserve  and  keep  from  biting,  or 


To  preser 

pigeoiis. 


To  pay  taxes 


Kf>t  in  cirt 
he'^?f «  lip  'er  a 
rerlai'i  ^lowtli. 


Precedents  of  Leaseif.  ,001 

liestruclion  by  calllc  or  ofhcrw  ise,  aiiil  shall  and  w  ill,  at 
sucii  ciitfiiig   and   plasliiug  thereof,  cleanse    and    srmir 
(lie  ditches  against  such  lud^cor  ht'«!i;(s,  uhere  tlilchcs 
have  Ijten  herdofore,   and    do  lie  not  to  any  lane  or 
hiiihway,  ami  the  oJal    wood  which  shall   arise   hy  the  ^'"'.'*"^**' 
cutting  or  plashint?   of  pucii  h<(lgcs,  fii,'!^ot   and    make  '"^^"••'■ 
up,  and   carry   unto  the  8aid  lea«cd    nuf-sna^e,  or  funi 
liouse,  tlirre  to  lie  pprnt    by   way  of  lir«   wood,  and    not 
to  l)e  sold  or  disposed  of  in   any  oliicr  innmtT    wliifso- 
cvcr.     yind  that  the  said    ^.   J.  his  cxrculoi-.s,   adniini- 
flrator?,  and  assign?,  sluill    not,  nor  \s  ill,  at  any  time  or 
tinits  durinir  t lie  term  lierchy  leased,  Ion,  too,  fihred,  or  ^^  ♦<>  •«»>,♦'«*• 
cut,  any  of  tlio  trees  or  fprini^  wood   l»clon^ing  to  the 
said  leased  premises,  l)ut  such  polhird  trees,  and  sprin.:^ 
wood,  as  liave  heen  iiFua'ly  'opp"d,  and  cut  by  foruur 
and  other  tenants,  and  th<tKc  only  of  twelve  years'  a[rpwth, 
and   the   lops   which  shaij  arise  and  coaie    there.fnHn, 
carry  into  tiicsaid  hcrcl)y  leased  messuatje  or  farm  house,  i"]!":. '"!!'*I"'^J.* 
there  to  he  spent  by  w  ay  of  fite  bote,   and  not  to  be  sold  '"^  " 
or  disposed  of  in  any  other   way  whatsoever,  and  shall 
not,  nor  will  at  any   time   or  times  during,   this   Ici'^e, 
inordinately  burn  or  waste  any  of  the  /ire-wood,  wliich 
is  so  allowed  to  be  spent  by  way  of  fire  bote,  as  afore- 
said, and  shall   preserve  and  keep  tiiesaitl  poiiard  trees, 
as  also  all  the  fruit  trees,  and  spring  wood,  belun^in.;  to 
the  said  hereby  leased  pnuiises,  from  all  wili'iil  or  n;'^;!!- 
gcnt  wai^te.     Jnd  the  said  A.   A.  doth  licrcby  for  him-    '""■  ''   '"','j 

self,  his  heirs,  and  assij;ns,  covenant,  promise,  and  agree,    

to,  and  with  the  saitl  li.  B.  his  executors,  administrators, 
and  assijjns,  in  manner  followinu;,  (that  is  to  say,)  that 
he  the  said  A.  A.  his  heirs,  ;-.nd  assigns,  shall  and  will 
from  time  to  time,  and  at  all  times  durintj  thi;  present 
lease,  at  seasoiiable  times  for  cutting  tind)er,  find,  pro- 
vide for,  and  allow  unto  the  said  B,  li.  his  e.xicutors, 
adminihtrators,  or  a?>i^ns,  on  the  said  jiremises  hereby 
leased,  or  \\  it  li in  four  miles  distant  therefrom,  necessary 
rough  timl)er,  brick,  lime,  ?i.x\^  tiles,  and  all  other  ma- 
terials wjiatsoover,  for  the  repairing  and  anu  nding  there- 
of (except  straw),  within  forty  days  after  notice  of  the  upao*;'!..- 
want  thereof,  and  demand  of  the  same  made  by  the  said 
B.  B.  his  executors,  administrators,  of  assigns,  the  frdd 
materials  to  Ijc  carried  to  the  sai<l  leascil  premises  at  the 
expense  of  the  said  B.  B.  his  executors,  i"s.c.  And 
also  shall  and  will  from  time  to  time,  and  at  all  tiincs 
durin^'  this  present  lea=e,  allow  unto  the  said  li,  U-,  his 


56: 


Precedents  of  Leases. 


And  to  allow 
plough-bote,  if 
on  the  pre- 
niaes. 


And  to  allow 
rnom  for  thresh- 
ing the  tenant's 
Jast  crop  for 
straw. 


And  room  for 
servants. 


;^nd  that  the 
lessee  may  ea- 
joy,  SiC. 


executors,  adminivStrators,  or  assigns,  timber  to  be  had 
and  taken  off  and  from  the  said  hereby  leased  premises, 
(if  any  such  there  be)  for  necessary  plough-bote,  to  be 
used  and  spent  upon  the  said  premises,  and  not  else- 
where, and  to  be  set  out  for  that  purpose  by  the  said 
A.  A.  his  heirs,  or  assigns  on  such  notice  as  aforesaid  of 
the  want  thereof :  and  that  the  said  A.  A.  his  heirs  and 
assigns,  shall  and  will  permit  and  suffer  the  said  B.  B. 
his  executors,  administrators,  or  assigns,  to  have  the  use 
of  all  the  barns,  yards,  and  granaries  hereby  leased,  for 
the  laying  in,  and  threshing  out  of  his  or  their  crop  of 
corn  or  grain,  which  shall  be  growing  and  arising  upon 
the  premises  in  the  last  year  of  the  said  term  hereby  leas- 
ed, for  the  spending  of  the  straw  and  stover  which  shall 
arise  therefrom,  with  horses,  cows,  bullocks,  and  other 
cattle,  until  the  feast  of  next  after  the  end,  expira- 

tion, or  other  sooner  determination  of  the  said  term  of 
years  ;  and  also  to  have  so.iie  convenient  roo.ns  in  the 
said  hereby  leased  messuage  or  farm  house,  for  his  or 
their  servants  to  lodge  and  diet  in,  and  some  convenient 
place  for  his  and  their  horses  to  stand  and  be  in,  and 
some  convenient  place  to  lay  hay  and  chaff  in,  until  the 
said  feast  day  of  next  after  the  determination  of  the 
said  term.  And  lastly^  that  it  shall  and  may  be  lawful, 
to  and  for  the  said  B.  B.  his  executors,  administrators, 
and  assigns  (paying  the  rent  herein  before  reserved,  and 
performing  the  covenants  and  agreements  herein  before 
mentioned  and  contained,  and  which  on  his  and  their 
part  and  behalf,  are  or  ought  to  be  paid,  done  and  per- 
formed) peaceably  and  quietly  to  have,  hold,  occupy, 
poi:sess  and  enjoy,  all  and  singular  the  said  hereby  leased 
premises,  with  the  appurtenances  during  the  said  term  of 

years  hereby  demised,  r.ithout  any  mloestation  or 
interruption  whatsoever,  of  or  by  him,  the  said  A.  A.  his 
heirs  or  assigns,  or  of  or  by  any  other  person  or  persons 
lawfully  or  equitably  claiming  or  to  claim,  by,  from,  or 
under  him,  them,  or  any  of  them. 

In  witness,  &c. 

An  fndorseiTient  for  conlinuiii'^  a  Lease  for  a 
longer  Term  after  the  Expiration  of  the 
Present, 


THIS  INDENTURE,  &c.  between  the  within  named 
A.  B.  of  the  one  part,  and  the  within  named  C.  D.  of 
ot  the  other  part,  nitnesscth^  that  for  and  in  consideration 


Prtci (hilts  of  Leases. 

of  the  rent  hereby  reserved,  and  of  tlic  cu\eiiants,  con- 
(.litioiis,  iuid  ai;;ricineiits  rcspcctivrly,  hrrciii  alter  con- 
taincil,  which  oil  the  part  and  Ijelialf  of  the  «iid  C  I). 
his  executors,  a(lniini.-trators  and  assign?,  are  to  he  paid, 
<h)nc  and  perf«)rnicd,  the  said  ."(.  IJ.  luilh  demised,  leased, 
set,  and  to  farm  h-t,  unto  the  said  C.  1).  hiscxcciit»rs,ad- 
nn'nistrat«»r6  and  assiu;ns,  all  that  piece  or  parcel  of  j^rouncf, 
^^  ith  the  nussiiau^e  or  tenement,  tliereon  erected  and  built, 
and  all  and  sinijidar  other  the  premises  respectively. com- 
prised in  the  within  written  lease,  and  thercl)y  demised  \9 
the  said  ('.  D.  (except  as  therein  is*  xcej)tcd), /o  have  and 
to  hold  the  said  piece  or  parcel  of  .t;round,  and  messu.igc 
«»r  tenement,  and  all  and  singular  otlicr  the  premises  here- 
by leased,  set,  and  to  farm  let,  or  mentioned,  or  intended 
so  to  be  (except  as  aforesaid),  nnto  the  said  C.  D.  his  ex- 
ecutors, ad  ndnistrators  and  assigns,  from  the  day  of 
,  which  will  I)c  in  the  year  of  our  Lord  ,  and 
when  the  said  within  \\rilten  leise  will  expire,  for  ami 
durini^,  and  unto  the  full  end  and  term  of  years 
Ioniser,  from  thence  next  ensuini;,  and  fully  to  be  com- 
})lete  and  ended,  subjeet  to,  and  iniclcr  the  like  rent,  and 
payable  in  like,  m.uiner,  as  is  within  nicnlioned,  for  and 
in  respect  of  the  rent  reserved,  in  and  by  the  said  within 
wriUen  lease,  and  'Subject  to  the  like  power  of  entry  as 
well  on  non  payment  of  rent,  as  on  the  happenin,;  of  .uiy 
of  the  other  incidents  mentioned  in  the  within  written 
proviso  or  condition  of  re-entry,  and  it  is  hereby  declared 
and  asjrced,  by  and  between  the  said  parties  to  these  pre- 
sents, that  they,  and  their  respective  heirs,  executors,  ad- 
ministrators and  assigns,  shall  and  w  ill,  by  tlifsc  present?, 
during  the  conliiiiiance  of  the  additional  term  of  years 
hereby  granted,  stand,  and  h?  bound,  for  and  in  respect 
of  the  said  liereby  demised  premises  with  the  appurte- 
nances, in  such  and  the  like  covenants,  conditions,  and 
agreements,  respectively,  as  they  the  said  parties  and 
their  respective  heirs,  executor^,  administrators  and  as- 
signs, do  now  stand  bound  in  and  by  the  said  w  ithin  leasr, 
for  and  during  t}>e  now  residue  unexpired  of  the  within 
mentioned  tonn  here!>y  granted,  it  being  the  intciit  and 
meaning  tliereof,  that  this  present  endorsed  lease,  itud  the 
additional  term  hereby  granted, shall  bcupon?uch  and  the 
like  footing,  and  a!!  the  covenants,  riaiists,  conditioiis  and 
agreements,  res|KxtiveIy  therein  contained,  l>e  equally 
available,  lake  place,  and  have  the  lii.c  force  and  «.ilV  tt,  t<. 
all  intents  and  purpo'^es,  us  if  ev»-ry  article.  cIhus*  ,  njatter 


5G4-  Precedents  of  Leases. 

and  thlnsr,  contained    in  the  said  within  lease,  uere  in- 
serted ami  cont  lined  in  this  present  indenture. 
In  witness,  8,-c. 


A  ^  nil  ding  Lease. 

TrilS  INDENTURE,  made,  Src.  between  A.  B.  ,^x. 
of  the  one  part,  and  C.  D.  of  the  other  part,  witncsseth,- 
that  the  said  A.  B.  for  and  in  the  consideration  of  the 
rents,  covenants  and  agreenienis,  herein  after  reserved  and 
cojntained,  by,  and  on  the  part  and  behalf  of  the  said  C.  D. 
his ext^cutors,  administrators  and  assigns,  to  be  piud,done, 
an-.i  performed,  hath  demised,  leased,  set,  and  to  farm  let, 
ai;d  by  these  presents  doth  demise,  lease,  set,  and  to  farm 
let,  unto  the  said  C.  D.  his  executors,  adminislrators  and 
assiiins,  all  that  piece  or  parcel  of  ground,  situate,  lying 
and  being  on,  ^c  in  the  said  jiarish  of  containing  in 

breadth  on  the  north  side  thereof  and  in  depth  on 

the  east  side  thereof  be  the  same  more  or  less,  and 

on  the  west  side  thereof  east  and  from  thence 

south  and  from  thence  east,  be  the  same  more  or  less, 
togf^tlier  with  the  messuages  or  tenements,  and  other  the 
erections  and  buildings  thereon,  which  the  said  C.  D. 
shall  have  fail  liberty  to  pull  down,  and  to  take  to  ami  for 
his  own  use-;  «'hich  said  piece  or  parcel  of  ground  abuts 
north  on  aforesaid,  south  on  gardens  to  some  houses 

on  the  north  side  of  belonging  to  the  said  J.  .  now 
on  lease  to  east  on  bniUiings,  itc.  and  Avest,  Si.c.  and 

is  more  fully  de  ineated  and  described  in  the  plan  or 
groimd  plot  thereof,  in  the  margin  of  these  presents,  to- 
gether with  all  erections  and  buildings  to  be  erected  and 
biiiit  tliereon,  and  all  ways,  paths,  passages,  drains,  wa- 
ter, water-courses,  easements,  profits,  commodities,  and 
appurtenances,  whatsoever,  belonging,  and  which  shall 
belong  to  the  said  hereby  demised  premises,  or  any  part 
or  parcel  thereof,  to  have  and  to  hold  the  said  piece  or  par- 
cel of  ground,  messuages,  or  tenements,  erections,  build- 
ings, and  premises  hereby  demised  or  intended  so  to  be, 
with  their  and  every  of  their  appurtenances,  unto  the  said 
C.  D.  his  executors,  administrators  and  assigns,  from  the 
day  of  last  past,  before  the  date  thereof,  for 

and  during,  and  unto  the  full  end  and  terra  of  years, 
from  thence  next  ensuing,  and  fully  to  be  complete  and 
endei\,  yielding  andpayins;  therefore  for  the  first  year  of  the 


Precedents  of  Leases.  -Tiii.'* 

Kiid  term  hereby  demised,  tin-  icdI  of  a  i)ep|}cr  corn  on 
the  last  (lay  Iheieol,  if  dcmamltd,  ami  yielding  and  pay- 
ing therefor  yearly,  and  every  year,  for  and  ddrin^  the 
reniainini;  years  of  the  said  term  herthy  deiniscii,  un- 
to the  saiil  J.  B.  his  heirs  ami  aj;5:ii;n6,  tl)e  yearly  rent  or 
6iun  of  /.  of  lawful  money  of  the  United  Kingdom 

«f  Grtdt  lirildin  ami  /r.'7rr//f/,  currtnt  in  Great  Britain^  l)y 
lialf  yearly  payment,  on  the  and  in  eacli  year,  by 
even  and  ecjiial  portions,  the  first  payment  t Hereof  to  be- 
gin and  be  made  on  in  the  year  of  our  Lor.l  the 
said  several  rents  to  be  paid  ami  p.iyal)le  from  time  to  time, 
on  the  several  feasts  aloresaid,  during  the  said  term,  free 
and  clear  of  all  rates,  taxes,  charges,  assessments,  and 
payments  whatsoever,  taxed, charged,  assessed, or imposetl 
upon  the  said  hereby  leased  premises, or  any  part  thereof, 
by  authority  of  parliament  or  otherwise  hou soever,  dur- 
ing the  term  hereby  granted.  /Ind  tlie  siid  C.  1).  for  hinj- 
self,  his  heirs,  executors,  administrators,  and  a«si.;ns,dot  h 
Govcnant,  promise,  and  agree,  to  and  with  tlie  said  A-  B. 
his  heirs  and  assigns,  by  these  presents,  in  manner  fol« 
lowing  (that  is  to  say),  that  the  said  C.  J),  his  heirs,  ex- 
ecutors, administrators,  and  assigns,  shall  antl  will  yearly, 
and  every  year  during  liie  last  years  of  the  said  term 
hereby  granted,  well  and  truly  pay,  or  cause  to  be  paid 
unto  the  said  J.  B.  his  heirs  and  assigns,  the  said  yearly 
rent  or   sum    of  /.of  lawful   jntJiiey  of  the   Lniled 

Kingdom  oi  Grcvt/ LV//rj//i  and  Ireland,  current  in  Great 
Britain^  on  the  several  days  and  limes, and  in  liic  manner 
hereinbefore  limited  and  appointed  for  p;iyment  tln:r«<)f, 
witliout  making  any  deduction  or  abatement  thereout,  for, 
or  in  respect  of  any  rates,  taxes,  assessments,  duties, 
charges,  or  impositions  whatsoever,  taxed,  charged,  as- 
sessed, or  imposed  upon  the  said  hereby  demised  premises, 
or  any  part  thereof,  during  the  said  term  hereby  granted; 
all  which  rates,  taxes,  assessments,  duties,  charges,  or  im- 
positions, he  the  said  C.  D.  his  executors,  administrators, 
or  assigns,  shall  and  will  bear,  pay,  and  discharge,  and 
therefore,  and  therefrom, acquit,  save  harmless,  and  keep 
indemnified  the  said  A.  B.  his  heirs  ami  as'i^n-.  And  tliat 
he  the  said  C.  D.  liis  executors,  administrates  or  as- 
signs, shall  and  will,  before  the  expiration  of  the  first 
year  of  the  term  hereby  granted,  at  Jiis  and  their  own 
proper  costs  and  cliarges,  erect,  build,  com|)lelc,  and  in 
a  workman-like  manner  finish,  cue  or  more  good  and 
substantial  brick  messuages  or  tenements,  upon  some  part 


€6  Precedents  of  Leases. 

of  the  ground  hereby  demised,  and  sliall  and  will  lay  out 
and  expend  therein  the  sum  of  /.  or  upwards,  and 

also  that  he  the  said  C.  D.  his  executors,  administralcrs 
and  assigns,  shall  and  will,  from  time  to  time,  and  at  all 
(in^.es,  from  and  after  the  said  messuage  or  tenement, 
erections  and  buildings,  on  the  said  piece  of  groui^d  here- 
by demised,  shall  be  respectively  compl  ted  and  finished, 
during  the  remainder  of  the  sa.d  term  hereby  granted, 
v.hen,  where,  and  as  often  as  need  or  occasion  shall  be 
and  require,  at  his  and  their  own  proper  costs  and  charges, 
well  and  sufHciently  repair,  uphold,  siippcrt,  maintain, 
pave,  puri;e,  scour,  cleanse,  enipty,  amend,  and  keep 
the  said  u:essuage  or  tenentent,  messwac^es  or  tenements, 
erections  and  buildings,  and  all  the  walls,  rails,  lights, 
pavements, grates,  privies,  sinks,  drains,  and  ^\atercourses, 
thereunto  belonging,  and  which  sh  ill  belon;:;;  unto  the  same, 
in,  by,  and  with  all  and  all  manner  of  needful  and  neces- 
sary reparations,  cleansings  and  amendments  whatsoever. 
Jndi\\dX  he  the  said  6'.  D.  his  executors,  administrators  and 
assigns,  shall  not,nor  will,diiring  the  said  term  hereby  grant- 
ed, permit  or  suffer  any  person  or  persons  to  use,  exercise, 
or  carry  on,  in  and  upon  the  said  hereby  demised  premises, 
or  any  part  thereof,  any  trade  or  business  which  may  be 
nauseous  or  ohensive,  or  grow  to  the  annoyance,  preju- 
dice, or  disturbance  of  any  of  the  other  tenements  of  the 
said  ^.  B.  near  adjoining  thereto,  and  the  said  messuage  or 
tenement,  messuages  or  tenements,  erect  ions,  buildings,  and 
premises,  with  the  walls,  pavements,  sewers,  and  drains 
belonging  thereto,  being  in  every  respect  so  well  and  suf- 
ficiently repaired,  upheld,  supported,  sustained,  main- 
tained, paved,  purged,  scoured,  cleansed, emptied,  amend- 
ed, and  kept,  shall  and  vill,  at  the  exi)iration,  or  other 
sooner  determination  of  the  said  term  her- by  granted, 
peaceably  and  quietly  leave,  surrender,  and  yield  up  unto 
the  sjid  J.  B.  his  heirs  and  assigns,  together  with  all  the 
doors,  locks,  keys,  bolts,  bars,  wainscot  ,  chimney-pieces, 
slabs,  foot-paces,  windows,  wintiow-shutters,  partitions, 
dressers,  shelves,  pumps,  water-pipes,  rails,  and  all  other 
things  which  shall  be  any  ways  fixed  and  fastened  to,  and 
shall  be  standing,  being,  and  set  up,  in  and  upon  the  said 
pramises  hereby  demised,  or  any  part  thereof  within  the 
last  years  of  the  said  term  hereby  granted.     j4nd 

that  the  said  C,  D.  his  executors,  administrators,  and  as- 
signs, shall  and  w  ill,  at  his  and  their  own  proper  costs 
and  charges,  from  time  to  time  sufficiently  insure  all  and 


Precedents  of  fjtnses.  .iOT 

every  the  mcssua-^cs  or  tenements,  erections  atul  build- 
ini^^s,  which  shill  l)c  ercctt'd  and  built  upon  tlic  said  piece 
or  p  U'cel  of  ground  hereby  deniiscd,  or  any  part  thtrcof, 
from  casualties  l»y  fur,  duriui;  the  Ihcn  rcmiiiiidcr  of  tiie 
said  term  liereby  i;rantrd,  in  some  or  one  of  the  public  of- 
fices kept  for  that  purpose,  in  London  or  U'l  slniinsh r;  and 
in  case  the  saiil    messuage  or  tenements,  erections  and 
buildings,  or  any  of  them,  or  any  part  of  any  of  tlsem, 
iiliall,at  any  time  or  times  dtuing  tlie  said  term,  be  burnt 
down,  destroyed,  or  damaged  by  lire,  shall  and  will,  from 
time  to  time,  immediately  aitcrwarils,  rebuild, or  well  and 
sufficiently  repair  (lie same.    And furthrr^WvuX  it  shall  and 
may  be  lawful,  to  ami  fur  the  said  A.  B.  his  heirs  and  as- 
signs, or  any  of  then),  with  workmen  or  others,  in  his, 
their,  or  any  of  their  company,  or  without,  to  enter  or 
come  into  and,  upon  the  said  demised  prejiiiscs,  and  every 
part  thereof,  at  seasonaI)lc  and  convenient  times,  in  llic 
day  time,  as  well  at  any  time  or  times,  during  the  list 
seven  years  of  the  said  term  hereby  granted,  to  make  an 
inventory  or  schedule  of  tlic  several  fixtures  and  tilings 
then  standing  and  bt'ing,  in  and  upon  the  said  lu'rcl)y  ile- 
niised  premises,  w  hich  are  to  be  left  at  the  end  of  t'.ie  said 
term,  to  and  for  the  use  of  the  srid  /].  B-  his  heirs  and 
assigns,  pursuant  to  the  covenanl  herein  bv-forc  in  th  it  be- 
half contained,  as  also  twice  or  oflener  in  every  year, during 
the  said  term  hereby  granted,  to  view,  search,  and  see  the 
defects  and  want  of  reparations  of  the  said  premises,  and 
all  defects  and  want  of  reparations,  w  hicii  upon  every  or 
any  such  view  or  search  shall  b"  from  time  to  time  fvind, 
to  give  or  leave  notice  or  warning  thereof  in  wri'in-,',  at 
or  upon  the  saifl  demised  premises,  unto,  and  for  the  sii.l 
C.  D.  his  executors,  administrators  or  assigns,  to  repair 
and  amend  the  same.     y//ir/that  the  said  C.  J),  his  execu- 
tors,  administrators   or    assii^ns,  shall  and   wiil,    within 
tlircc  months  next  after  every  such  notice  or  warning  shall 
bec;ivcn  or  left,  at  his  and  their  ov.n  proper  cosis  and 
charges,  well  and  suilicienlly  repair,  amend,  and  make 
goods,  all  and  every  the  dcfctls  and  want  of  reparations,' 
whereof  such  notice  or  warning  shall  be  so  given  or  left 
as  aforesaid.     I'ror'drd  nlnni/Sy  nevertheless,  an.l  these 
presents 'are  upon  this  condition,  tliut  if  tiie  said  yearly 
rent,  or  sum  of         /.  hereby  reserved,  or  any  part  there- 
of, sliall  be  beliind  and  unpaid,  by  the  spare  of         days, 
next  after  either  of  the  said  leasts  or  days  of  payment, 
whereon  the  same  ought  to  be  paid  as  aforesjiid  (l)eing 


568  Precedents  of  Leases. 

lawfully  demanded,)  or  if  the  said  C.  D.  his  executors,  ad- 
ministrators or  assigns,  shall  not  ■well  and  truly  observe, 
perform,  fulfil  and  keep,  all  and  every  the  covenants,  ar- 
ticles, clauses,  conditions  aud  agreements,  in  these  pre- 
sents expressed  and  contained,  on  his  and  their  part  and 
behalf  to  be  performed  and  kept  according  to  the  true  in- 
tent and  meaning  thereof,  then,  and  from  thenceforth,  in 
either  of  the  said  cases,  it  shall  and  may  be  lawful,  to  and 
for  the  said  ^.  B.  his  heirs  and  assigns,  into,  and  upon 
the  said  demised  premises,  or  any  part  thereof  in  the  name 
of  the  whole,  wholly  to  reenter,  and  the  same  to  have 
again,  retain,  repossess  and  enjoy,  and  in  his,  and  their 
first  and  former  estate,  and  the  said  C.  D.  his  executors, 
administrators  or  assigns,  and  all  other  tenants  or  occu- 
piers of  the  said  premises,  thereout,  and  from  thence  ut- 
terly to  expel,  put  out,  and  amove,  and  that  from  and 
after  such  re-entry  made,  this  present  lease  and  every 
clause,  article  and  thing,  herein  contained  on  the  lessor's 
part  and  behalf,  from  thenceforth  to  be  done  and  per- 
formed, shall  cease,  determine,  and  be  utterly  void,  to  all 
intents  and  purposes  A\hatsoever,  any  thing  hereinbefore 
contained  to  the  contrary  thereof  in  anywisenotM  ithstand- 
ing.  Jnd  the  said  ji.  B.  for  himself,  his  heirs,  and  assigns, 
doth  hereby  covenant,  promise,  and  agree,  to  and  with 
the  said  C.  D.  his  heirs,  executors,  administrators,  and 
assigns,  paying  the  said  yearly  rent  herel)y  reserved,  in 
manner  and  form  aforesaid,  and  observing,  performing 
and  keeping,  all  and  singular  the  covenants  and  agree- 
ments, herein  before  mentioned,  on  his  and  their  parts  and 
behalf  to  be  performed  and  kept,  shall  and  may  lau  fully, 
peaceably  and  quietly  have,  hold,  occupy,  possess,  and 
enjoy  the  said  piece  or  parcel  of  eroimd  and  premises 
hereby  demised,  with  their  and  every  of  their  appurte- 
nances, for  and  during  the  said  term  of  years  here- 
by granted,  without  any  lawful  let,  trouble,  denial  or  in- 
terruption, of  or  by  the  said  A.  B.  his  heirs  or  assigns, 
or  any  other  person  or  persons,  lawfully  claiming  or  to 
claim,  by,  from,  or  under  him,  them,  or  any  of  them. 
In  witness.  Sec. 


Lease  of  a  House  in  a  Town. 

THIS  INDENTURE,  &-c.  between  A.  A.  of,  Sec.  of 

Parties.  the  one  part,  and  //.  H.  of,  8c c  of  the  other  parK  nit- 

nessethj  that  for  and  in  consideration  of  the  yearly  rent. 


Precedents  of  Leases.  .OGO 

and  of  tlic  covenants,  provisoes  and  a2;rcom«'nt«,  herein 
after  reserved  and  contained,  hy  and  on  tlie  part  and  be- 
half of  the  said  //.  J{.  his  executors,  administrators  and  "«"'•• 
assii^ns,  to  be  paiii,  obsjerved,  and  perforineil,  he  the  said 
jf.  A.  hath  demised  ami  leased, and  by  tliese  presentf;  doth 
demise  and  lease  unto  the  siiil  //.  11.  his  executors,  aif- 
niinistrators,  ami  assigns,  alt  that  messuau;e  or  tenement 
and  dwellin^-liouse,  situate  and  being  on  the  side  or 

part  of  street,  in  the  parish  of  in  the  city  of  ''":'"»»"• 

London,  toijcther  «  ith  [licrv  describe  the  particulars  of  the 
prcmis(i'\  ;  and  also  all  ways,  passages,  lights,  easement?,  <;< n*™! "oi*. 
roonjs,  v.Lults,  cellars,  areas,  yards,  water-courses,  profits, 
conveniences,  hereditaments,  and  appurtenances,  wjiatso- 
cver,  to  the  said  messuage,  or  premises  hereby  demised,  be- 
longing or  in  ;iny  way  ap[)crlaining,  or  reputed  or  known 
to  be  part,parcel,or  member  thereof:  all  and  singidar  which 
said  messuage  and  premises  are  now,  or  lately  were,  in 
the  occupation  of  (i.  r?.  his  assi-^nee  or  assigns,  to  have  "•'•""'uoi for 
and  to  hold  the  said  messuage  or  tenement  and  premises, 
with  the  appurtenances  hereby  den^ised,  or  so  mention- 
ed to  be  unto  the  said  //.  JL  his  CACvutors,  administra- 
tors, atid  assigns,  from  the  2jth  day  of  December  lust  past, 
for  and  during  the  term  of  twenty-one  years,  thence 
next  ensuincr,  and  fullv  to  lie  complete  and  ended,  deter-  "'«•'">■">•'•«»»« 

O '  -  '  '  t  !if  ••uil  I*  7  or 

jniinl)ic  neverthilesp  at  the  expiration  of  the  first  seven  ">■'*" 
or  fourteen  years  thereof,  upon  such  conditions  as  are 
herein  after  mentioned  ;  he  the  saitl  //.  //.  his  executors 
ailministrators,  and  assigns,  yielding  and  payini;  yearly 
and  every  year  diuin;;  the  said  term,  unto  the  said  y1.  A- 
his  executors,  admini.^trators  and  assigns,  the  yearly 
rent  or  sum  of  pounds, of  lawful  money  of  the  United  ^''hfr-mof. 
Kingdom  of  Great  Britain  and  Ireland,  current  in  (Went 
Britain,  the  same  to  be  piid  by  equal  quarterly  payments 
on  t lie  respective  days  following  :  namely,  on  the  !:^oth 
day  of  March,  the  2 Ith  day  of  June,  the  2'.)th  day  of 
September,  and  the  S.Vth  day  of  December,  in  c; ery  year, 
(save  and  except,  .at  all  times  during  the  said  term  such  ^N'^'^^on  ••  t» 
proportionable  part  of  the  said  yearly  rent  of  p')unds 
as  shall  or  may  grow  due  during  such  time,  as  the 
messuage  or  tenement  hereby  demised,  shall  without  the 
hindrance  of  the  said  //.  //.  his  executors,  AV.  be 
and  remain  uninhabitable  by  reason  of  accidental  fire) 
and  to  be  clear  of  all  and  all  manner  of  parliamentary, 
parochial  and  other  taxes,  assessments,  rates  and  deduc- 
tions Avhatsocvcr,  the  first  (jnarterly  payment  thereof  to 


670 


Precedents  of  Leases. 


Covenant  to 
pay  rcDt. 


And  taxes  fex- 
cept  land-tax.) 


Covenant  that 

leasee  shall 

jiaint  every  3d 

year. 

Ami  (in  other 

repairs. 


Power  to  lesi?or 
to  view  the 
Etate  of  the  le- 
pajxs. 


Gornmence  and  be  made  on  the  24ith  day  of  Jtnic  next 
ensuing  the  date  of  these  presents.  And  the  said  IL  H. 
doth  hereby  for  himself,  his  executors,  Srr.  covenant, 
promise  and  agree  to  and  with  the  said  A.  A.  his  execu- 
tors, Sec.  that  he  the  said  //.  K.  his  executors,  Rrc.  shall 
and  will  3'eariy  and  every  j'ear  during  the  continuance  of 
the  said  terra  hereby  demised  (save  and  except  as  afore- 
said,) well  and  truly  pay,  or  cause  to  be  paid  unto  the 
said  A.  A.  his  executors,  &C.  the  said  yearly  sum  or 
rent  of  pounds,  of  lawful  money  of  the  United 

Kingdom  of  Great  Britain  and  Ireland,  current  in  Great 
Britain,  on  the  respective  days,  and  in  the  manner  the 
same  is  herein  before  made  payable.  And  also  shall  and 
will  well  and  truly  pay,  .or  cause  to  be  paid,  all  and  aH 
manner  of  taxes,  assessments,  rates,  and  impositions 
whatsoever,  parliamentary,  parochial  or  otherwise,  (the 
land-tax  only  excepted,)  which  now  are,  or  shall  at  any 
time  during  the  continuai'ce  of  the  said  term  hereby 
demised,  be  assessed,  rated,  or  imposed  on  the  said 
demised  messuage  or  tenement,  and  premises,  or  any 
part  thereof,  or  on  the  said  yearly  rent  hereby  reserved, 
or  any  part  thereof,  or  on  tiie  said  H.  H.  his  executors, 
i^c.  on  account  thereof.  And  also  that  he  the  said  H.  iT 
his  executors,  Sec  shall  and  m  ill  at  his  and  their  own 
proper  costs  and  charges,  cause  to  be  well  and  sufficiently 
painted,  all  the  outside  wood  and  iron  work  belonging 
to  the  said  messuage  or  tenement  and  premises  herel^^y 
demised,  every  third  year  during  the  continuance  of  the 
said  term,  and  at  his  and  their  like  proper  costs  and 
charges,  shall  and  will  at  all  times  during  the  continu- 
ance of  the  said  term,  keep  in  a  good,  suflkient,  and 
tenantahle  state  of  repair,  as  well  all  and  singular  the 
glass  and  other  \\indo\AS,  wainscots,  rooms,  floors, 
partitions,  ceilings,  tilings,  walls,  rails,  fences,  pave- 
ments, grates,  sinks,  privies,  drains,  wells,  and  water- 
courses, as  also  all  and  every  other  the  parts  and  ap- 
purtenances of  the  said  messuage  or  tenement  and  pre- 
mises hereby  demised,  (damage  happening  by  casual  fire 
only  excepted,)  and  further,  that  it  shall  he  lawful  for 
the  said  A.  A.  his  executors,  S:c.  either  alone  or  with 
others,  twice  in  every  year  during  the  said  term  hereby 
granted,  at  such  times  of  the  year  as  to  him  or  them 
shall  seem  meet,  to  enter  at  seasonable  times  of  the  day 
into  and  upon  the  saiil  messuage  or  tenement  and  pre- 
mises hereby  demised  and  every  part  thereof,  and  there- 


Frcctdenls  of  Leases.  :,1\ 

to  view  and  examine , the  state  and  con<lition  thereof, 
notice  of  such  intention  to  view  being  at  all  tiinefi  pre-  Afierootic*- 
viously  given  unto  the  saiil  //.  //.  his  executors,  .Slc.  one 
clay  at  least  before  tlie  fame  shall  take  jtlace  ;  and  in 
case  any  decay  or  want  of  reparation  he  found  on  sm  h 
view,  the  said  //.  //.  for  himself,  executor.'*,  vve.  dolh 
hereby  covenant,  promise  and  agree,  to  and  v  if  Ii  t  lie  []'•;'■"•"' ^""j  ^. 
said  A.  //.  his  executors,  he.  to  cause  the  same  to  be  [ni.'V.  to" 
well  and  sulhcieutly  repaired  and  amended  willdn  the  ioVurtililr."*!*. 
space  of  six  months  after  notice  thereof  in  writing  shall 
have  been  i^lven  to  him  or  th'-m  f)r  that  purpose.  And 
the  said  //.  //.  iloth  for  himself,  his  executors,  I'vr.  pro- 
mise, covenant,  and  agree,  to  and  with  the  saiil  .7.  A. 
his  executors,  N.c.  that  he  tlie  said  //.  //.  his  cx^'cutors, 
\.c.  at  the  end  or  earlier  determination  of  the  saiil  term 
hereby  granted,  shall  and  will  leave  and  yield  up  unto 
the  said  A.  A.  his  executors,  he.  all  and  lingular  tlie 
said  messuage  or  tenement  and  premises  w  illi  their  ap- 
purtenances, in  sucli  good,  sulllcient  and  tenant  able 
state  of  repair  as  aforesaid,  together  with  all  and  every 
the  doors,  locks,  keys,  l>oIts,  bars,  cliimney  pieces, 
dressers,  shelves,  water-pipes,  and  otlier  things  men- 
tioned in  an  inventory  or  schedule,  *  hereunder  written 
or  hereunto  annexed,  in  as  good  plight  and  condition  as 
the  same  now  are,  (reasonable  use  and  wear  tliereof  and 
casualties  happening  l)y  hre  only  excepted,)  Provided  al-  J^'^rc'^n^ '*****' 
uays,  and  these  presents  are  upon  this  express  condition, 
that  if  tiie  said  yearly  rent  hereby  reserved,  or  any  part 
thereof,  shall  be  in  arrears  and  unpaid  for  the  space  of 
days  next  after  any  of  the  ilays  wliereon  the  same 
is  herein  before  covenanted  to  be  paid  as  aforesaid,  (it 
being  first  lawfully  demanded,)  or  if  the  said  //.  11.  his 
executors,  ^S.c.  shall  not  well  and  truly  observe,  and 
keep,  accord uii;  to  their  true  intent  and  meaning,  all  and 
every  the  covenants,  clauses,  provisoes  and  agreements  by 
him  and  them  to  be  observed  and  kept,  then  ajul  from 
thenceforth  in  either  of  the  said  cases,  it  shall  be  law  ful 
for  the  said  A.  A.  his  executors,  &c.  to  re-enter  into 
and  upon  the  said  liereby  tlcmiseil  messuaiie  or  tenement 
and  premises,  or  any  i)ut  tliereof,  in  the  name  of  tlie 
whole,  and  the  same  to  have  again,  repossess,  retain, 
and  enjoy,  as  his  and  their  former  estate,  and  the  said 
IL   If.   his  executors,  vS^c.   and  all  other    tenants    and 

'  Tliij  inventory  niu«'  ke  itairpwl 


572 


Prtcahnls  of  Leases. 


Covenant  that 
ies^ee  shall 
quietly  enjoy 
tbe  premises. 


Free  frutn  iTie 
sikiiial  lease. 


Coveiianl  for 
the  renewal  of 
tbe  .*aie. 


occupiers  of  the  said  premises  thereout  utterly  to  eject 
and  remove,  and  that  from  and  after  such  re-entry  made, 
this  lease  and  every  clause  and  thing  herein  contained, 
shail  determine,  and  be  utterly  void  to  all  intents  and 
purposes,  any  thing  herein  contained  to  the  contrary  not- 
-withstanding.  And  the  said  y^.  A.  for  himself,  his  exe- 
cutors, ttc.  doth  covenant,  promise  and  agree,  to  and 
■with  the  said  //.  11.  his  executors,  t^c.  by  these  pre- 
sents, in  manner  following,  that  is  to  say,  that  he  the 
said  //.  //.his  executors,  &c.  paying  the  rent  hereby 
reserved  in  manner  aforesaid,  and  performing  the  cove- 
nants and  agreements  herein  contained  and  by  him  and 
them  to  be  performed,  shall  and  lawfully  may  peaceably 
and  quietly  hold,  occupy,  and  enjoy  the  messuage  or 
tenement,  and  all  other  the  premises  hereby  demised, 
for  and  during  the  said  terra  of  twenty-one  years  hereby 
granted,  without  any  lawful  action,  suit,  or  interruption 
of  the  said  A.  A.  his  executors,  S^c.  or  any  other  person 
lawfully  claiming  by,  from,  or  under  him  or  any  of 
them  ;  and  that  freed  and  discharged,  or  otherwise  by 
the  said  A.  A.  his  executors,  &c.  saved  harmless  and 
indemnified  from  the  rents  and  covenants  reserved  and 
contained. in  a  certain  indenture  of  lease,  l)eariDg  date 
the  day  of  in  tke  year  of  our  Lord 

■whereby  the  said  A.  A,  holdeth  the  said  messuage  or 
tenement  and  premises  hereby  demised,  from  the  date 
hereof  for  the  term  of  sixty-one  years,  and  from 

all  claims  and  demands  whatsoever  in  respect  thereof. 
And  the  said  A.  A.  doth  hereby  further  covenant,  pro- 
mise and  agree  to  and  with  the  said  H.  H.  his  executors, 
^x  that  the  said  A.  A.  his  executors,  ^-c.  shall  and 
uill,  before  the  expiration  of  this  present  lease,  on  the 
request,  and  the  costs  and  charges  of  the  said  H.  H, 
his  executors,  Sec.  grant  and  execute  unto  him  and 
them,  a  new  and  fresh  lease  of  the  messuage  or  tene- 
ment, and  all  other  the  premises  hereby  demised,  uith 
their  appurtenances,  for  the  further  term  of  years, 

to  commence  from  the  expiration  of  the  terra  hereby 
granted,  the  same  to  be  at  the  same  yearly  rent,  pay- 
able in  like  raanner,  and  under  and  subject  to  the  like 
covenants,  provisoes  and  agreements,  (except  a  covenant 
for  the  renewal  thereof  at  the  end  of  such  further  term,) 
as  are  contained  in  these  presents,  such  new  lease  how- 
ever to  be  granted  and  br-  valid,  only  on  condition  that 
the  said  //.  H,  his  executors,  &.c.  do  execute  a  counter- 


l*rec€ihnts  of  LeaseSy  A V ,  573 

part  thereof,  and  al^o   pay  unto  Ww  Miid  J.  A.  his  exe- 
cutors, ^-r.  the  s-uin  ol  pounds  of  lawful  money, 
Sic  at  the  time  of  txcculiri^  the  said  lease,  as  and   by 
Avay  of  line  or    preinimu  for  llje  renewal  thereof,  And  ■*'!'"''-" 
«/vo,  that  if  the  said  11.  II.  his  executors,  «\'< .  }<hall   be 
desirous  to  quit  the  said  messuage  or  tenement  ami  pre-  U«/'o^«iiii 
luisi's  htreliy  demised,  at  the  expiration  of  tlie  fir.-l  seven 
or  the  hrst    fourteen    years   of  the  ternj  of   Iwenly-iinc 
years  herel)y  urantcd  tliercof ;  and  of  such  his  or  tiieir 
desire,  shall  i;ive  notice  in  uritiui;  to  the  Siiiil  .7.  //.  his 
executors,  N.c.  six  calendar  months  before  the  cxpiratiou 
of  the  said  first  seven  or   fourteen  years,  (as  the  case 
may  l)e)  then  and  in  such  case,  (all  arrears  of  rent  being 
duly  paid,   and  the  said    messiiat;e  or  tenement,  and  all 
other  the  premises  here!>y  tlemised,  bein^  in  such  repair 
as  they  arc  herein  before  covenanted  to  be  maintained  and 
left  in,)   this   lease  and  every  clause    and  thing   herein 
cotilained,  shall,  at  tjic  expiration   of  such   iir^^t    seven 
or  hrst   fourteen  years  of  the  said  term  of  twenty-one 
years  hereby  granted,  (wliichever    be  hi  the  said  notice 
expressed,)  determine  and  be  utterly   void  to  all  intents 
and  purposes,   in    like  manner  as  if  the  whole   term  of 
twenty-one  years  had  ran  out  and  expired^  any  thmg  in 
these  presents  contained  to  the  contrary  notwilhslanding. 
In  witness  whereof  the    said   parties  have   hereunto   set 
their   iiauds  aiid  seals,  the  day  and   year   first   above 

vritten. 

A.  A.  (Sea!) 

;/.  IL  (Seal) 

Sealed  and  delivered  in  the  presence  of 

B.  B.  of 

G.  a.  of 

An  Indorsement  to  contimie   the   Term  of  an 
c.i'pirin^  Lease. 

THIS  INDENTURE  made  tl.c  d.iyof  in 

the  year  of  our    Lord  and  in  the  year  of 

the  reign  of  our  Sovereign  L'^rd  George  the  Third,  \c. 
between  the  within  named  K.  L,  of  the  one  part,  and 
the  within  named  .U.  .V.  of  the  other  part,  nitiusselh. 
That  in  ctmsideralion  of  the  rent  hereby  r«  =ervcd,  ami 
of  the  covenants,  provisoes  and  agreements  herein  con- 
tained, by  and  on  the  part  ami  behalf  of  tho  ?aid  M.  S. 

7  1 


j74  Precedents  of  Leases,  St^c. 

to  he  paid,  observed  and  perforiiied,  the  said  K.  L.  hk 
excculors,  Si-r.  yy/Mhol  pifcc  or  parcel  of  ground,  with 
the  messnagc  or  tencnsent  tl-fre.-n  erected,  and  all  and 
sin;rular  other  the  pr^rnisi-p  compri?:fd  in  the  vithin 
vritten  lease,  and  thcrebj^  d' mised  or  mentioned  so  to 
Habenduic  ])e.     To  havc  and  to  hold  the  said  piece  or  parcel  of 

gronnd,  or  mesFUi^ge  or   tenement,  and    premises,  unto 
the  said  M.  N.  his  execidors,  <<?-r.  from  the  day 

of  ■vvhicli  will  be  in  the  year  of  our  Lord 

^vhen  the  within  written  lease  will  expire  and  determine, 
for  and  di  ring,  ami  unto  the  ffiiJ  end  and  term  of 
years  thence  next    enf-uing,   subject  to   and  onder  the 
same  rent,  as  in   the  within  v.ritten  lease  is  reserved, 
and  also  subject  to  t}ie   like  power  of  re-entry  on  the 
nonpaymnn}  of  the  rent,  or  the  happening  of  any  »^ther 
of  the  incidents  mentioned  in  the  proviso  (or  re-entry 
within  written.     And  it  b  hereby  df^clared  and   agreed, 
by  and  between  the  parties  to  these  presmts,  that  they 
and  their  rcppective  executors.  \c.  sha  1  and   will,  dur- 
ing the  continuance  of  tlie  additional  term  of 
years  hereby  granted,  stand  to  and    be  bound  by  such 
and  the  like  covenants,    provisoes  and    agreements,  as 
they,  their  respective  executors,  .*^cc.  are  now  bound  by 
according  to  the  within  writt^^n   lease,  in  respect  of  the 
gaid  messuage  or  teneuK-nt   and    premises   thereby  and 
hereby  granted,  it  being  the  intent   and  meaning  of  the 
parties  hereto  that  this  indorsed  lease  and  the  additional 
term  hereby  granted,  shah   be  n})on  such  and  the  like 
footing  as  is  the  lease   within  written,  and   that  all  the 
covenants,   provisoes,    ami    agreements,   in    the    within 
■written  lease  contained  be  rq'ially  available  and  have  the 
like  force  and  ei;ect  to  all  intents  and  purposes  as  if  the 
same  and  every  thing  in  t])e  said  lease  contained  were 
repeated  and  inserted  in  these  presents. 
In  u  itncss,  &c. 


Covenant    Inj    the   Lessee    not    to  use  or  assign 
the  FfcTinses  jar  any  offensive  Track. 

AND  also  that  the  said  C.  D.  his  executorF,  Sec. 
shall  not  nor  \\\\],  at  any  time  during  the  continu- 
ance of  the  said  term  hertby  granted,  use  or  carry  on, 
or  suij'er  or  permit  to  be  used  or  carried  on,  in  the  said 
demised  messuage  or  tenement  and  premises,  or  assign 


Prerrilruls  of  As!<i<^vmvub. 

over  the  prsfiU  ind'Htirc  of  lease,  or  fct  over,  Itt  or 
jLShi-'U  \ny   part  of  fii     Saiil  ui'ssii.i^r  Dr  t<iiem'nt   and 
premises,  to  any  p<'rson  or  persons  usinq;  or  carrying  oil 
tiH:  tr  I  le,   Imsiness   or.  callini;  of  a   maker  of  std  in  or 
otii'  r  cImIis,    liaker,  hrewer,  hutcli'^r,  ctirrier,  dit^tillcT, 
dy  T,    ftuiider,    pnntli,    s):ip  t»uiicr,    schu  l-nia6trr    or 
5c'a«)'>l-mi'-tr'S^\  sn  ;ar-lj  iker,  aiictionTr,  pewterrr,  tallow  • 
chaiullcr  <»r  t  illow-nu'.fer.  v-orking  l)ra/icr,  tinman,  tripp- 
boiler,    pipe-maker,    pijfe-biror,   pitiiulur,  or  any    otiitr 
noxious  or  oiiensivc   traJe,   husine^,.  or  calinu,   wnit- 
jocver,  witfioiil  thu  consent  in  writing;  of  tli.-  .•■aid  ./.  IL 
his  cxpcutors,  K'c   first  li.ul  anil  o'>tained  for  that  pur- 
pose, nor  s'lall  nor  wil,  u  illjont  such  ct)nscnt  as  aforeraid 
make  or  cause  to  l)C   m^de  any  adilition  or  alteration 
whatever,  in   up  ^n,  or  \\>  \i\  t!ie  .'^aid  mcssuai^e  or  trne- 
wcnt  and  prciuises,  or  any  part  lliereof. 


An  Assii^nmrnt  of  n  LrasJiohJ  Tnlercsl  hy  Deed- 
jto'/  iiiuors(  (I  on  I  lie  fjia.<i'. 

KNOW  a!i  men  by  thepe  presents,  that  I  the  within 
named  /.  IL  for  ajid  in  con^^ider  iti'on  of  tlie  sum 
of  five  sl\illinj;s  of  la-,  fu'  money  of  the  United  Kini^donis 
o{  Great  iirif.u'fi  atcl  frrfiijid  ciurcni  in  (irraf  Jirilnirt  to 
nie  in  hand  piid  !>y  .V.  0.  of  K''"^-  '*^  ^^  l»ef'ire 

the  enscalin:;  and  rieiivcry  of  tlicse  presents,  tlie  r'^cipt 
whereof  I  do  Jierehy  nektiow  led:;'',  line  t)arufainv(l,  sold, 
Bct  over,  and  assi -n  tnilo  the  said  X.  0.  all  ami  sinGfniar 
the  messuage  or  ten'^;i:'rnt,  yard,  garden,  coarli-lionsc, 
stable?,  ou1-lion?es,  and  hcre.iitamcnts,  in  ai5<l  by  t!ie 
within  written  indent  ore  demised  or  mentioned  so  to  be, 
with  their  appiirtcnniref,  an  I  also  ail  that  «nMll  i,''^r<'''ii 
at  the  end  of  and  adj^inint;  to  tlic  n  foresaid  i;ur  len,  with 
the  siimmer-hoi;:;e  a!id  iiin  iit  uliirli  were  Ica^i  I  •  i 
agreed  to  t)c  leased  in  nie  t>y  the  within  nam'^rl  A\  /.  by 
agreement  between  us  d.tlcd  the  day  n -xt  I  efop"  the  day 
of  the  date  hereof  tor  t went y-one  years  or  s»c]\  other 
term  as  is  therein  nietitio'jed,  at  the  yearly  rent  of  ten 
pounds  of  said  Ian  ful  money  of  tli»'  United  Kingrlonisof 
Crrnt  Britnin  ami  Ir'lnnd^  current  in  Orient  lirifnin  pay- 
able quarterly,  that  is  to  say,  at  the  fe.u^ts  of,  <^r.  and 
also  all  my  estate,  rii^ht,  title,  inlensl.  term  of  year*, 


576  Notices  to  quit  Premises,  Si'c. 

claim  and  demand  whatsoever,  of,  into,  or  out  of  the 
same  roessuage  and  other  the  premises,  or  any  or  either 
of  them  or  otherwise  howsoever,  together  with  the  same 
indenture  and  agreement  and  all  the  benefit  thereof,  To 
have  and  to  hold  the  said  messuage  or  tenement,  build- 
ings, gardens,  summer  house,  mount,  and  other  the 
premises  hereby  assigned  or  mentioned  so  to  be,  with 
the  appurtenances,  unto  the  said  N.  0.  his  executors, 
administrators,  and  assigns,  from  henceforth,  for  all  the 
now  residue  of  the  within  mentioned  term  of  twenty- 
one  years,  and  of  such  other  terra  or  terms  as  I  the  said 
ji.  B.  now  have  or  ought  to  have  therein  respectively, 
subject  nevertheless  to  the  rents,  covenants,  and  agree- 
ments in  the  said  indenture  and  agreements  respectively 
reserved  and  contained  and  agreed  upon,  and  which 
from  henceforth  on  the  tenant's  or  lessee's  part  are  or 
ought  to  be  paid,  done  and  performed. 
In  witness  whereof,  <^c. 


Forms  of  Notices  to  quit  Possession  of  the  Pre- 
mises, Repair,  St'c. 


[They  need  not  be  stamped.  ] 


Notice  hy  the  Landlord  to  his  Tenant, 

Sir, 
I  HEREBY  give  you  notice  to  quit  the  premises  which 
you  hold  of  me  situate  at  in  the  county  of 

on  next,  or  at  the  expiration  of  the  current  year  of 

your  tenancy.* 

Yours,  (5t. 
[the  date]  J.  B.  [the landlord] 

To  J.  K.  [the  tenant  in  possession."] 

Another  Form,  more  particularly  describing  the 
Premises. 

Sir, 
YOU  are  hereby  required  to  quit  possession  of  the 
Premises    which    you    hold  of   me,    namely,    a    mes- 
suage and  garden  with  the  appurtenances,  describing  the 

*  This  precaution  becomes  necessary  in  order  to  prevent  the  nonsuit,  which  the  par- 
ty may  obtain  where  the  person  seeking  posaegslon  is  not  certain  of  the  time  Kb? n  the 
tenancy  commenced. 


Not i CIS  to  (jit a  P remises y   <S*t.  1)77 

Prenuscs.']  situate  in  the  parisli  of  in  the  county  of 

now  ocrupiiMl  by  yoii  f»n  next, or  at  the 

expiration  of  the  current  year  of  your  tenancy. 
Dated  this  day  of  18—. 

U.  /•;.  [I he  f (indl or d]  or  C.  J'.  aj;rul 
To  C.  [].  [the  I,  mint.]         for  li.  1..  legally  anthorizecj. 


A  third  Form. 
Mv.  r.  D. 

I  IIKRl\UV  f^ive  you  notice  tocpiit  and  d{ liver  up  lo 
me  on  Christ inus-dni/  next,  the  peaceable  and  (|uict  pos- 
session of  all  those  two  nu'ssua.;es,  tenements,  and 
dwe!lini;-honse3  with  their  appurtenances,  sit«iate  in 

in  the  parish  of  in  tiie  [dty,  bnrotijhyor  coiintu] 

of  wliich  you  lately  licid  imder  !\Iessrs.  and 

V  hich  you  now  hold  of  nic,  as  tenant  from  year  to  year, 
provided  your  tenancy  originally  conunenceel  at  Christ- 
inas or  otherwise,  that  you  quit  and  deliver  up  lo  nictlio 
peaceable  and  quiet  possession  of  tlic  said  premises,  at 
the  end  of  the  year  of  your  tenancy,  which  shall  expire 
next  after  the  end  of  half  a  year  from  t  lie  dale  hereof. 

Dated  tiiis  day  of  18—  J.  U. 

Thii  seems  to  lie  ific  proper  form  of  a  ?<incr»l  notire  to  qiiif.aml  U  ■ceonlintlo  lbs 
form  which  nas  ikeiuecl  eu/Hcieiu  in  the  c»i€  of  Doc  ti  dan.  I'htlp  > .  ISutltf.S  Ktf. 

B    *K». 

Nolicr  to  i/uit   Lodi^iiigs. 

Sir, 
I  IIL^REBV  cive  you  notice  toquit  and  deliver  upon 
or  before  next,  the  rooms  or  ai)artments,  and  other 

tenements  wliicli  you  now  hoKl  of  mc  in  thii  house  [as  thn 
case  is."] 

Witness  my  hand,  this         day  of         in  the  year 
To  E.  X.  [the  lodirer.]  K.  F.  [the  landlord.] 


Notice  lo  the   Tenant  either  to  qnit  the  Premises, 
or  pay  double  Rent. 

Sir, 
I  HEREBY  give  you  notice  to  q-iit  and  yield  up,  on 
the  day  of  n(\xt,  possession  of  the  mes. 

suage  with  its  appurtenances,    lands,  tenements,    and 


578  Notices  to  quit  Premises^  SCc, 

hereditaments  which  you   now  hold   of  me,  situate  at 

in  the  parish  of  and  counly  of 

in  failure  whereof  I  si;al]  require  and  insist  upon  double 
the  value  of  the  said  premises  according  to  the  statute  in 
such  case  made  and  provided.     Dated  this  day 

of 
To  A.  B.  [tenant.-\  E.  N.  [landlord,] 


Notice  to  quit  hi/  the  Tenant. 

Sir, 

I  HI^^ilEBY  'Ave  you  notice  that  on         day  of 
Ishi;.  quit  possession  of  the  messuage  or  tenement  and 
preuuses  which  1  now  hold  of  you,  situate  at 
in  the  parish  of  in  tiie  county  of 

Dated  this  day  of  18— 

Yours,  Src. 
To  J\  E.  [landlord.']  A.  B.  [tenant.] 

\ 

T^'otice  hy  the  Tenant  to  quit  Lodgings, 
Sir, 
THIS  is  to  give  you  notice  that  on  day  of 

next  I  shall  quit  and  deliver  up  possession  of  the  rooms 
or  apartments  and  other  tenements  which  I  now  hold  of 
you  in  this  house. 

Witness  my  hand,  this  day  of  18 — . 

N.  0.  [the  lodger.] 

Notice  to  Tenant  to  repair. 
Sir, 
YOU  are  hereby  required  to  put  in  good  and  tenant- 
aMe  repair,  all  and  singular  the  messuage  or  tenement 
and  premises  which  you  now  hold  of  me,  situate  at,  &c. 
Particularly  the  servant's  hall  in  the  said  messuage  or 
tenement,  and  the  tilting  or  roof  at  the  northern  end 
thereof  [as  the  casr  maij  be.] 

Witness  my  hand,  this  day  of 

To  E.  N.  [tena7U.]  '         P.  L.  [landlord.] 

Notice  to  Tenant  to  pay  Bent. 

Sir, 

THIS  is  to  warn  you  that  imless  you  pay,  or  cause  to 
be  paid  unto  me,  on  or  before  the  day  of 

next,  the  sum  of  being  a  year's  rent 


DisfresSy  how  made. 

due  on  the  clay  of  for  I  lie  nif-^uagr  or  f'nic- 

mnit  and  prfiiiiscs  w'licli  you  ivu  tio|(f  .if  lue,  nt  ihc 
ytrarly  rmt  of  situated,  <V*c.  1  fliall  cliini  and  insist 

upon  such  lorfiifurc  thereof,  us  1  may   Ijc  l)y   law  cu- 
titlctl  to. 

Witness  my  hand 

A'.  }'.  [liindloriL] 
To  L  K.  [ttnant.] 


How  to  make  a   Distress  for  Renf  Arrcnr,  and 
of  l/u  Sale  of  tlu  same. 

THE  landlord  himself,  or  any  other  person,  as  his 
bailiil",  l)y  an  autliorify  from  him  in  writiiiir,  n)  ly  uiakc  ^^' '■>•"'"  •"«»»«• 
the  distress.  The  warrant  or  authority  may  l>e  in  the  fol- 
lowing form  :  "  To  Mr.  A.  B.  my  haili  !,  greeting. — Dis- 
train the  goods  and  cliatlcis  of  C.  D.  (the  tcnaii').  in 
the  house  he  now  dwells  in  (or  on  tlii^'  pr<  mis(s  in  iiis 
possession),   sitiiafe  in  in  the  county  of  for 

pounds,  bein:^  one  year's  rent,  due  to  me  for  the 
same  at  Christmas  day  last,  and  for  your  so  duing  this 
shall  be  your  sufiicient  warrant  and  authority.  Dated 
the  day  of  18—-  "  J.  S.'' 

Being  legally  authorized  to  df«tnin,  you  enter  on  the  ""t^""'^*" 
premises,  and  make  a  seizur;*  of  the  distr.ss.     If  it  he 
made  in  a  house,  seize  a  chair  or  otiier  pifce  of  furnitme, 
and  say, "  1  seize  this  chair,  in  the  name  ot"  al.  th;-  goods 
in  this  house,  for  the  sum  of  pounds,   heiui;  one 

year's  rent  due  to  me  (or  to  J.  S.  the  laudlori)  at 
Christmas  day  last,  by  virt  :e  of  an  authority  irom  the 
said  /.  S.  for  that  purpose  (j)roiided  i/ou  distrain  as  Oai- 

Then  take  an  inventory  of  so  many  goods  as  you  judge 
will  be  sufficieni  to  co\er  the  rent  dii-trained  for,  ami  al- 
so the  charges  of  the  distress.  I^Iake  a  copy  thereof,  as 
follows : 

"  An  inventory  *  of  the  several  goods  and  chattels  dis-  Th*- inTentof .*•. 
trained  by  me  jl.  B.  this  day  of  in  the 

year  of  our  Lord  in  the  houses,  out-houses,  and 

This  inTentory  is liaMe  to  1 2i  G<l.  jump-July  by  Mau  37  O.  1  c.  jO.  «   I 


^80  Distress,  how  made. 

lands  ("ris  the  case  is  J,  of  C.  D.  situate  in  in  the 

county  of  by  the  autlioiity  and  on  the  behalf  of 

J.  S.  (^provided  you  distrain  as  OaiJifj'^,  for  the  sura  of 
pounds,  being  one  year's  rent  due  to  rae,  or  to 
the  said  /.  S.  (^as  the  rase  is),  at  Christmas  day  last. 

"  In  the  dwelling-house,  two  tables,  two  chairs,  ^c. 

In  the  barn,  six  hurdles,  and  so  on." 

At  the  bottom  of  the  inventory,  subscribe  the  following 
notice  to  the  tenant  : 


The  notice  to 
tbeteiiaut. 


«  Mr.  a  D. 

Take  notice,  that  I  have  this  day  distrained  (or  that 
as  baiiiii  to  J.  S,  your  landlord,  I  have  this  day  dis- 
traineo)  on  the  premises  above-mentioned,  the  several 
goods  and  chattels  specified  in  the  above  inventory,  for 
the  gum  of  pounds,  being  one  year's  rent,  due  to 

ine  (or  to  the  said  /.  S.  )  at  Christmas  day  last,  for  the 
said  premises ;  and  that  unless  you  pay  the  said  rent, 
"With  the  charges  of  distraining  for  the  same,  within 
jive  days  from  the  date  hereof,  the  said  goods  and  chat- 
tels will  be  appraised  ?ind  sold  according  to  law.  Given 
under  my  hand,  the  day  of  in  the  year  of 

our  Lord  "  W,  7'." 


How  served. 


or  removing  the 
guoUs. 


When  they  may 
be  sold. 


A  true  copy  of  the  above  inventory  and  notice  must 
either  be  given  to  the  tenant  himself,  or  left  at  his  house, 
or,  if  there  be  no  house,  on  the  most  notorious  place  on 
the  premises. ,  And  it  is  proper  to  have  a  person  with  you 
when  you  make  the  distress,  and  also  when  you  serve  the 
inventory  and  notice,  to  examine  the  same,  and  to  attest 
the  regularity  of  the  proceedings. 

The  goods  may  be  removed  immediately,  and  in  the  no- 
tice the  tenant  may  be  acquainted  where  they  arje  removed ; 
bist  it  is  now  most  usual  to  put  a  man  in  possession,  and 
let  them  remain  on  the  premises  till  you  are  entitled  by 
law  to  seil  then*,  which  is  on  the  sixth  day  inclusive, 
after  the  distress  made,  i.  e.  goods  distrained  on  the  Satur- 
day, may  be  removed  and  sold  on  the  Thursday  afternoon 
following.    Wallace  v.  Kirig  and  another  1  //.  BL  13. 


*  By  the  common  law,  a  distress  vas  merely  a  pledge,  and  could  not  be  sold  ;  but  to 
protect  landlords  jn  the  recovery  of  their  rent,  the  statijic2  Jr  a  M.  \.  c.bs.  2  autho- 
rize, the  sale  oi  gooifa  distrained  for  rent,  aftsr  five  days  from  the  making  of  th« 
dietress. 


Distress  y  how  in  ml  i .  .'Mil 


If  the  tonaiit  rtniiirc  fiirtluT  time  for  the  i»ayincnl  of  "■". >ff"'M't 
the  rent,  ami  tlur  landlord  clmsos  to  allow  it,  it  is  Ix-st  to 
take  a  iiR-moranihiiii  in  writing  from  llir  tenant  ;  "  that 
he  tlocs  consint  that  he  fjhoiiM  continue  in  iKisscFsion 
of  his  goods  and  chattels  in  his  Iioum-  (or  upon  the  pre- 
miss), for  such  a  time  lom^er,  you  having  a-^reed  not 
to  sell  thenj  f^r  that  lime,  and  that  he  will  pay  the  ex-  Arr««<-iw«i  foi 
j)enscs  of  keeping;  possession."  'J'his  memorandum  pre- 
vents the  landlord  fron\  beuii;  deemed  a  trespasser,  which, 
after  the  expiration  of  five  days,  he  otherwise  wou!d  I>c, 
and  nii^ld  have  an  action  of  trespass  brought  against 
liim  for  staying  lonj;cr  upon  the  premises. 

If  there  be  no  allowance  of,  or  agreement  for,  ftirlhcr  /; 
lime,  search  at  the  expiration  of  the  five  ilays  at  llie  she-  '' 
rill's  oilice  to  see  if  the  goods  have  been  replevied  ;  if 
not,  and  the  rent  and  charires  still  remain  unpaid,  send 
for  a  constabh *  and  two  sworn  appraisers,  who  having 
viewed  the  goods,  the  former  must  administer  to  the  lat- 
ter the  following  oath  : 

*'  You,  and  each  of  you,  shall  well  and  truly  a])praisc  Apprtuon'  o«<* 
•  the  goods  and  challeis  ujentioncd  in  this  inveiilory  (Iiold- 
ing  it  in  his  hanil),  according  to  the  best  of  your  judg- 
ment.    So  help  you  Goil." 

Then  indorse   on  the  inventory  the  following  nicmo- 
Fandum  ; 

*'  Memorandum  ;  that  on  the  day  of        in  the  ^H'ZT'^''*' 

year  of  our  Lord  A.  li.  of,  «^*r.  and  C.  J),  of,  Ac. 

two  sworn  appraisers,  were  sworn  upon  the  Holy  E\  an- 
gelists,  by  me  J.  K.  of,  AV.  constalilc,  well  and  truly  to 
appraise  the  goods  anil  chattels  mentioned  in  this  inven- 
tory, according  to  the  best  of  tlieir  judgment. 

As  witness  my  hand, 
"  Present  at  the  time  J-  K.  Constable." 

of  swearing  the  said 
A.  Ji.  and  C.  1).  as 
above,  and  witness 
thereto. 

/..   M. 

0.  pr 

*  It  should  be  s  ronrtibleofthe  humlreil,  p«ri«h  or  pUce,  »bi>fe  n»cb  dWUMt  wtl 
Ukcfi,  and  not  one  out  of  the  dNtrl' »     Watlatt  v    if  in/    I  //   B!ac    \i 

7o 


582 


Appraisement. 


How  disposed 
of. 


Dislress,  koiv  made. 

After  the  appraisers  have  valued  the  goods,  continue 
the  indorsement  on  the  inventory  as  follows  : 

"  We,  the  ahove  named  A.  B.  and  C.  D.  being  swoni 
upon  the  Holy  Evangelists,  by  J.  K.  the  constable  above 
named,  well  and  triily  to  appraise  the  goods  and  chattels 
mentioned  in  this  inventory,  according  to  the  ])est  of  our 
judgment  ;  and,  having  viewed  the  said  goods  and  chat- 
tels, do  appraise  the  same  at  the  sum  of 
pounds.     As  witness  0((r  hands  the  day  of 

in  the  year  of  our  Lord 
J.  B. 
C.  D. 


.'  y  Sworn  Appraisers.' 


When  the  goods  are  thus  valued,  it  is  usual  for  the  ap- 
praisers to  buy  them  at  their  own  valuation,  and  a  receipt 
at  the  bottom  of  the  inventory,  witnessed  by  the  consta- 
ble is  usually  held  a  discharge.  But  if  the  distrtss  be 
of  considerable  value,  it  is  much  more  advi.sable  to  have 
a  proper^  bargain  and  sale  between  the  landlord,  the  con- 
stable, the  appraiser,  and  the  purchaser. 

The  goods  being  disposed  of,  deduct  the  rent  in  arrear, 
and  a!l  reasonable  charges  attending  the  distress,  and  re- 
turn the  overplus  (if  any)  to  the  tenant. 

If  the  produce  is  not  sufficient  to  cover  the  demand, 
you  may  distrain  again. 

Form  of  a  TenanCs  Consent  to  the  Landlord's 
continuing  in  Possession  vpon  the  Premises, 
when  he  requires  further  Time  for  Payment, 

I  E.  T.  do  hereby  consent  that  A.  B.  my  landlord, 
who  on  the  day  of  distrained  my  goods 

and  chattels  for  rent  due  to  him,  shall  continue  possession 
thereof  on  the  premises  for  the  space  of  seven  days  from 
the  date  hereof,  the  said  A.  B.  undertaking  to  delay  the 
sale  of  the  said  goods  and  chattels  for  that  time,  in  order 
to  enal)le  me  to  discharge  the  said  rent. 

Witness  my  hand,  this  day  of  18^—. 

E,  T. 


Preccdtnts  in   lupin  in.  .^83 

Notice  to  llu  Shtrijf  n/u  n  in  Po^sfssion  on  an 
Kxvculion. 

IF  tlie  sherilTis  in  possession  of  the  (rnanfsV  good  on 
an  execution,  the  lunfJIord  n  rd  not  make  a  distress,  l>ut 
should  forthuitli  servo  liin\  with  the  follouing  notice: 

To.V.  O.-j 

and     I  Kf-qr'sShcrilVsof  ."\Ii(lillcsc.\r^j//(c  rase  mar/ or.} 
E.  K   J 

TAKE  nolicc,  that  tlic  sum  of  for  one  yrars' 

[as  the  case  is]  rent  due  at  last,  is  now  due  from  /:. 

N.  the  person  to  \\  honi  tlic  i;oods  l)elon^;  of  which  you 
nre  now  in  possession,  by  virtue  of  his  Majesty's  writ  of 
returnable  [state  the  writ  and  return.} 

Ab  uitnehs  my  hand,  this  day  of  18 — . 

Note.  The  man  in  possession  of  the  goods,  &.c.  is  to 
ho  paid  2s.  0  /.  prr  dirm,  if  tiic  tenant  keep  him  :  and  is. 
G(/.  if  he  keep  himself. 


Precedents  of  Plcailini^s  in  Pcpleiin. 

THE  King,  &c.  We  command  you  that  justly,  and  wm  or  r«piev,u 
without  delay,  you  cause  to  l)e  replevied  the  cattle  of 
JJ.  which  IJ.  tool;  and  unjustly  detains,  as  it  is  said,  and 
afterwards  thereupon  cause  him  justly  to  be  removed, 
that  we  may  hear  no  more  clamour  thereupon  for  want 
of  justice,  ^.c. 

./.  B.  complains  against  C.  D.  in  a  i)Ica  of  lalin-  and  '''•"" 
unjustly  detainini;  his  cattle  against  surcli'.s  and  pledges, 
i-c. 

1  /;.  r. 

ricdges  to  prosecute,  V  and 

Nn    I. 


-to  wit.     C.    D.  was  summoned    to   answer   "n<o.  p^';;;;^!;^^. 


f.  li.  of  a  plea  :  wherefore  the  said  C.  D.  look  tlw  i;«)ods 
and  chattels  [or  cattle]  of  thcsaid  A.  li.  and  uujuslly  do- 
tained  the  same  against  sureties  and  pledges,  until,  Scc. 
and  thereupon  the  said  ./.  li.  hy  E.  /'.  his  attorney,  com- 
plains that  the  said  C  D.  on  the      day  of     in  the  year 


584  Precedents  in  Beplevin, 

of  our  Lord  at  the  parish  of  in  the  county 

of  in  a  certain  dwelling-house  there  (or  place  there) 

called  took  the  goods  and  chattels  (or  cattle) :  to  wit, 
Inhere  set  out  the  goods,  or  cattle,  as  the  case  may  ^c]  and 
unjustly  detained  the  same  against  sureties  and  pledges 
until,  ^c. ;  wherefore  the  said  A.  B.  says  that  he  is  hi- 
jured,  and  hath  sustained  damage  to  the  value  of  L 

?ind  therefore  he  brings  his  suit,  ^'C. 

Trinitij  Term,  44  G.  III. 
piea^o'f'  ";.  ce^u'.    ^'  ^- 1      ^"t^  the  said  C.  D.  by  G.  H,  his  attorney  comes. 


,:..} 


and  defends  the  wrong  and  injury,    when,  &c. 

and  says,  that  he  did  not  take  the  said  goods 
and  chattels  [or  cattle]  in  the  said  declaration  mentioned, 
or  any  part  thereof,  in  manner  and  form  as  the  said  4.  B^ 
hath  above  thereof  complained  against  him;  and  of  this 
hej  the  said  C.  D.  puts  himself  upon  the  country,  &:c. 

Trinitfj   Term,  44  G.  III. 
No  HI.       c.  D.-)      And  the  said  C.  D.   by  G.   H.   his  attorney, 

Avowry  and  cog-  I  •  -'  *'^J| 

oifTi'i"s£'uite''"'^  '^''  f  comes  and  defends  the  wrong  and  injury,  when 
"  ^'  ^'  '^'  ''^'  ■  ■  -^  Sec.  and  well  avows  [or  if  a  cognizance  sav,  as 
bailiff  of  C.  D.  well  acknowledges]  the' taking  of  the  said 
goods  and  chattels,  in  the  said  dtclaration  mentioned  in 
the  said  dwelling-house,  in  which,  &c.  and  justly^  &c.  ; 
becavise  he  says  that  the  said  J.  B,  for  a  long  space  of 
time,  to  w  it  for  the  space  of  next  before  and  ending  on 
the  day  of  in  the  year  of  our  Lord         and 

from  thence,  until,  and  at  the  said  time,  when,  &c.  held 
and  enjoyed  the  said  dwelling-house,  in  which,  Sec.  with 
the  appurtenances  as  tenant  thereof  to  him,  the  said  C. 
D.  by  virtue  of  a  certain  demise  thereof  to  him,  tiie  said 
C.  D.  theretofore  made  up,  and  under  the  yearly  rent  of 

/.  payable  quarterly,  on  the  day  of 

the  day  of  .the         day  of         and  the 

day  of  in  every  year,  by  even  and  equal  portions  j 

and  because  /.  of  the  rent  aforesaid  for  the  said 

space  of  ending  as  aforesaid  on  the  said  day 

of  in  the  year  aforesaid,  and  frorn  thence  until,  and 

at  the  said  time,  when,  &c.  Mere  due  an  J  in  arrear  from 
the  said  J.  B.  to  the  said  C.  D.  he  said  C.  D.  well 
avows  [or  as  bailiff  of  the  said  well  acknowledges] 

the  taking  of  the  said  goods  and  chattels,  in  the  said 
dwelling-house  in  which,  &c.  and  justly,  &c.  as  for 
Stud  in  the  name  of  a  distress  for  the  said  rent  so  due  a,nd 


Prcrfihnts  In   Hrplcvin.  j'cn 

ill  arrcar  as  afDnsaid,  arnl  uliicli  said  mil  flill  rtniaim 
due  and  in  arnar  to  him  the  «aid  ('.  I),  (or  to  the  saicl 
(j.  II.)  and  this  he,  the  said  C.  I),  is  ready  to  verify. 
WhercfoiT  he  prays  jiid^nient  and  a  return  of  the  j^oods 
and  chatl(ds,  toj;clher  witli  his  dama'^rs,  i<s:c.  aceordiiii; 
to  the  form  of  the  statute  in  such  case  made  and  provid- 
ed, to  be  adjudged  to  him,  ^u . 

And  the  said  ./.  li.  savs  that  the  said  C.  I),  hy  reason  „,  "^  '^ 
of  any  tliins;  in  his  said  avowry  [or  cognizance]  ahove  """^ 
alled-cdou^ht  nottoavow  [nracknowledice]  (he  taking  of 
the  said  j;oods  and  chattels,  in  tlic  said  dweliins-house,  in 
wliich,  6<.c.  and  Jnsfly,  Ncc.  Because  he  says,  tlial  the 
said  J.  Ji.  did  not  hold  and  enjoy  the  said  dwellin^-lionse 
in  which,  .S.c.  as  tenarjt  thereof  to  the  said  C.  D.  in 
manner  and  form  astiie  said  C.  I),  hath  aI)ovc  in  his  said 
avowry  [or  cognizance]  in  that  behalf  alledged,  and  this 
he  the  said  yl.  li.  prays  may  be  inquired  of  by  the  coun- 
try, ike. 

because  lie  says,  that  no  part  of  the  said  rent  in  the  p^^.^^,"^J^f^ 
said  avowry  [or  cognizance  ]  mentioned  at  the  saiil  time,  f"-' "*»""«■• 
vlun,  vStc.   was  due,  or  in  aricar,  to  the  said  C  I),  in 
manner  and  form  as  the  said  C.  I),  has  above  in  his  said 
avowry  [or  cognizance]  in  that  behalf  alle<lged  ;  and  tliLs 
lie  prays  may  be  inquired  of  by  the  coiir.try,  \,c. 


C.  /).")  And  the  said  ('.  I),  by  C.  11.  liis  ariornoy,  , 
V.  y  comes  and  defends  the  wrong  and  injury,  when,  '• 
■/t.  B.J  \c.  and  well  avows  tiie  taking  of  the  said  cattle 
in  the  saitl  place,  in  which,  etc.  and  justly,  &c.  Ixeause 
he  s  lys,  tlial  the  said  place  now  is,  and  at  the  6.iiil  time 
wluTi,  v*s:c.  was  the  soil  and  freelioKl  of  him,  the  said 
C.  D.  and  because  the  said  cattle,  at  the  same  time  u  Ju-.ii, 
etc.  were  wrongfully  in  tl.e  sai<l  place,  in  which,  vS:c.  eating 
up  and  depasturing  the  grass  there  tlien  growing, and  do- 
ing damage  there  to  the  said  C.  D.  he  the  said  C.  I),  well 
avows  the  taking  of  the  said  cattle  in  the  said  declaration 
mentioned,  in  the  said  place,  in  which,  etc.  and  jnsDy, 
etc.  so  there  doing  damage  as  aforesaid,  as  for  and  in  the. 
name  of  a  distress  for  the  said  damage  so  there  done  and 
d')ini:,and  this  he  the  said  C.  D.  is  ready  to  verify.  Where- 
fore he  prays  judgment  and  a  return  of  the  said  cattle,  to- 
gether with  his  damages,  etc.  according  to  the  forai  of  thu 


.586 


Precedents  in  Replevin. 


statute  in  such  case  made  and  provided,  to  be  adjudged 
to  him,  iic. 


Xo.  VII. 

Judgment  of  non 
j»ios  for  want  of 
a  deelaraUoQ. 


Ju^meat  signed, 


to  wit.  C.  D.  puts  in  his  place  G.  H.  his  attorney, 

at  the  suit  oi  A.  B.  in  a  plea  of  taking  and  unjustly  de- 
taining the  goods  and  chattels  of  the  said  J..  B,  agaii:st 
sureties  and  pledges,  etc. 

to  %\  it.     C.  D.  was  summoned  to  answer  A.  B.  of 

a  plea,  wherefore  he  took,  etc.  [Jt he  goods  mmtiontd  in  the 
jp/fl««/]af  thesaid  A.  £.and  unjustly  detained  them  against 
sureties  and  pledges,  etc.  And  hereupon  the  said  C.  D. 
in  his  proper  person,  oflers  himself  on  the  fourth  day, 
against  the  said  A.  B.  in  the  plea  aforesaid  ;  but  the  said 
A.  B.  although  solemnly  called,  comes  not,  but  makes  de* 
fault,  nor  does  he  further  prosecute  his  writ  against  the 
said  C.  D.  Therefore  it  is  considered,  that  the  said 
A.  B.  take  nothing  by  his  said  writ,  but  that  he  and  his 
pledges  to  prosecute  be  in  mercy,  etc.  and  that  the  said 
C.  D.  do  go  thereof  without  day,  etc.  and  that  he  have 
a  return  of  the  said  goods  and  chattels,  etc. :  It  is  also 
considered  by  the  Court  here,  that  the  said  C.  D.  do  re- 
cover against  the  said  A.  B.  I.  for  his  costs  and 
charges  by  him  laid  out,  about  his  defence  in  this  behalf, 
by  the  said  Court  here  adjudged  to  the  said  C.  D.  and 
with  his  assent,  according  to  the  form  of  the  statute  in 
such  case  made  and  provided:  and  that  the  said  C.  D. 
have  execution  tiiereof,  etc. 


Xo   VIIT. 
The  li'e  Tor  want 
of  a  |ilea  in  i^ar, 
at  ccouuoa  law. 


to  wit.  A.  B.  puts  in  his  place  E.  F.  his  attor- 
ney, against  C.  D-  in  a  plea  of  taking  and  unjustly  de- 
taining the  goods  and  chattels  of  the  said  A.  B.  against 
sureties  and  p'edges,  etc. 

to  wit.     the  said  C.  D.  puts  in  his  place  G.  If. 

his  attorney,  at  the  suit  of  the  said  A.  B.  in  the  plea  afore- 
said. 

■ to  wit.     C    D.  was  summoned  to  answer  unto 

A.  B.  of  a  plea,  etc.  [here  cop//  the  declarutiofi  and  cog- 
nizance,  and  proceed  as  follows  :]  and  upon  this  the  said 
C.  D  prays  that  the  said  A.  B.  may  plead  in  bar  of  the  said 
co_;nizance;  and  thereupon  a  day  is  given  to  the  said  A.  B. 
before  our  Lord  the  King,  until  wheresoever  our 

said  Lord  the  King  shall  then  be  in  England,  that  is  to 
say,  for  him  the  said  A.  B.  to  plead  in  bar  of  the  said 
cognizance,  etc.  The  same  day  is  given  to  the  said  C.  D. 
there,  etc.     At  which  day,  before  our  said  Lord  the  King 


Precedents  in  Heplcrin,  "iS? 

at  Westminster,  comes  the  said  C.  D.  by  hi?  attornry  afore- 
said, and  oilvT^  himself  aiain^t  the  sai<l  -/.  B.  in  the  pica 
aforesaid  ;  but  thewid  A.  B.  althniii;h  solemnly  ra'Ird, 
comes  not,  liiit  makes  tiefault,  nor  hath  he  pleaded  in  liar 
of  the  said  coi^nizance,  nor  does  he  further  pr  '   f 

Mril   against  the  said  C.  D.  .  tluniurf  it  i^  i  '. 

etc.  [as  in  the  last '\. 

Geore^e  the  Third,  etc.  to  the  sheriff  of  greeting :  ^^ ^ 7"*  '^ 

tvhereas  C   D.  was   summoned  to  app'^ar  in  our  Court  ;" 
before  us,  on  >n  hertsocver  «e  then  should  he  in  J,      .,^,,, ,  J' 

England^  to  answer  nnto  A.  B.  of  a  pKa  whenfore  he 
took  the  i;oods  and  chattels  of  the  said  A  B.  and  unjustly 
detained  ttie  same,  against  sureties  anJ  pledt^es,  until,  etc. 
And  the  said  C.  D.  Ojfcred  himself  in  our  said  Court  bcs 
fore  us,  on  the  fourth  day,  ag  linst  the  said  A.  B.  in  Uic 
plea  aforesaid,  and  the  said  J.  B.  althoosh  solemnly  called, 
came  not,  but  made  defauU  ;  theref-reit  was  considered 
by  the  same  Couit,that  the  said  J.  B.  and  his  ple(l^e^  to 
prosecute  should  \k  in  mercy,  A'v.  And  the  said  C.  D, 
oliered  hiniseif  in  our  sai<l  Court  bcfjre  us,  on  the  fourth 
day  aiiaiiist  the  said  A.  B.  in  the  pica  aforesaid,  and  the 
said  A  B.  although  solenmly  called,  came  not,  but  made 
defai'lt  ;  therefore  it  was  consitlered  by  the  same  Court, 
that  the  said  A.  B.  and  his  p!edu:es  to  prosecute  should 
be  in  mercy,  ivc.  and  that  the  said  C.  D.  should  go  there- 
of without  day,  SiC.  and  have  a  return  of  the  said  good^ 
and  chattels  ;  anrl  thereupon  it  hath  been  fui^:;esled  in 
our  said  Court  before  us,  by  the  said  C.  D.  that  he  the  said 
C.  D.  took  the  said  goods  and  chattels  of  the  said  ./.  li. 
as  aforesaid,  at  in  tlie  said  coimty,  in  a  certain  mes- 

£i:ai;eor  d\«clling-house  there,  and  that  he  took  the  same 
as  bailiiT  of  E.  F.  for  that  Cue  said  A-  B.  for  the  space  of 
one  year,  next  l>efore  and  ending  on  the        day  of 
in  the  year  of  our  Lord  and  from  thence  until  and 

at  the  time  oftaking  the  said  goods  an  I  chattels,  held  and 
enjoyed  the  said  messuage  or  dwelling-house  and  premises, 
with  the  appurtf nances,  amongst  other  things,  as  tenant 
thereof  to  the  said  L.  f.  at  and  under  the  yearly  rent  of 

/.  And  because  /.  of  the  rent  aforesaid,  for 
ending  as  aforesaid,  on  the  saiil,  iVcc.  and  from  thence  im- 
til  and  at  the  time  of  taking  the  said  goods  and  chatleiic, 
were  due,  and  in  arrear  from  the  said  A.  B-  to  the  said 
E.  F.  he  the  said  C.  J),  as  bailid  to  the  saiti  E.  F.  took  the 
said  goods  and  chattels,  as  for  and  in  the  nanu-  of  a  dl^ 


588  Precedenis  in  Replevin. 

tress  for  the  said  rent,  so  due  in  arrear  from  the  said  yJ.  B. 
to  the  said  E.  F.  as  aforesaid  ;  and  the  said  C  D.  accord' 
ing  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, prayed  our  writ  to  be  directed  to  j'^ou,  to  inquire 
of  the  arrears  of  the  rent  aforesaid,  and  of  the  value  of 
the  said  goods  and  chattels,  and  it  was  granted  to  him, 
ixc.  as  by  the  record  and  proceedings  thereof,  still  re^ 
maining  in  our  said  Court  before  us,  at  Westjninstcr  afore- 
said, fully  appears :  therefore  we  command  you,  that  ac- 
cording to  the  form  of  the  statute  aforesaid,  you  diligently 
inquire  by  the  oath  of  twelve  good  and  lawful  men  of  your 
bailiwick,  how  much  of  the  yearly  rent  aforesaid,  at  the 
time  of  taking  and  distraining  the  said  goods  and  chattels, 
was  in  arrear  and  unpaid,  and  how  much  the  said  goods 
and  chattels  so  as  aforesaid  taken  and  distrained  were 
worth,  according  to  the  true  value  of  the  same,  and  the 
inquisition  which  you  shall  thereupon  take,  make  appear 
lo  us  on  wheresoever  we  shall  then  be  in  E7iglandy 

under  your  seal  and  the  seals  of  those  by  whose  oath  you 
shall  take  the  said  inquisition  ;  and  have  there  the  names 
of  them  by  whose  oath  you  shall  take  the  said  inquisition, 
and  this  writ. 

Witness,  Edward^  Lord  Ellenhorovghy  ^x. 

Wo.  X.  Georffe  the  Third,  &,c.  to  the  sherriT  of  sreeting ; 

TTie  like   upon  o  '  o  o 

a  jiuifcment  for      -whereas  C.  D.  lately  in  our  Court  before  us  at  Westmins- 
^^''  ter,  was  summoned  to  answer  J.  B.  of  a  plea  wherefore 

he  took  t  he  goods  and  chattels  of  the  said  J.  B.  and  un- 
justly detained  them  against  sureties  and  pledges,  &,c. 
whereupon  the  said  A.  B.  by  his  attorney,  complained  that 
said  C.  D.  theretofore,  to  wit,  on,  &.c.  at,  ^c.  in  your 
county,  in  a  certain  place  there,  called  had  seised 

and  taken  the  goods  and  chattels  of  the  said  J.  B.  to  wit, 
[set  out  the  goodsmentioned  in  the  declaration]  and  unjustly 
detained  the  same  against  sureties  and  pledges,  until,  &c. 
And  the  said  C-  D-  appearing  in  our  said  Court  before  us, 
at  Westminster  aforesaid,  by  his  attorney,  well  avowed 
the  taking  of  the  said  goods  and  chattels,  &c.  [^hcre  recite 
the  whole  of  the  avowrij,  and  proceed  asjollows  ;]  And  such 
proceedings  were  thereupon  had  in  our  said  Court  before 
us,  at  Westminster  aforesaid,  that  it  was  afterwards  con- 
sidered in  the  same  Court,  that  the  said  J.  B.  should  take 
nothing  by  his  wi'it  aforesaid,  but  that  he  and  his  pledges 
to  prosecute  should  be  in  mercy,  &c.  and  that  the  said 
C.  D.  should  go  thereof  without  day,  &c.  and  have  a  ve 


I^rfcid  Ills  tn  liiji/nin.  .'>U9 

turn  of  the  snid  i^oods  and  chattels;    mid  tljcrcupon  th« 
suiJ  6'-   1).  according  to  l\u:  form  uf  the  statute  in  such 
C80e  inude  and  provided,  prayed  our  writ,  <^c.  [as  in  tlir 
iastytothccml.'] 

[Js  in  No.  8,  t9  the  end  qf  the  judgment  for  a  return^ 
and  I  hen  dsjollons:] 

And  hereupon  the  said  C.  D.  accordini;  to  the  form  of  r,,,^".  o.'.th. 
the  statute  ill  such  case  made  and  provided,  prays  the  writ  7'"  "^  *  ' 
of  our  Faid  J, on!  the  Kitig,  to  Me  tlirccttil  to  the  phcrilf 
of  to  inquire  of  the  arrears  of  the  rent  aforesaid, 

and  of  the  value  of  the  said  t^oods  and  chattels;  and  it  is 
Ljranted  to  him,  Ar.  Therefore  it  is  couuuandcti  t«)  the 
said  sherilf  of  according  to  the  form  of  the  statute 

aforesaid,  that  he  diligently  inquire,  hy  the  oath  of  twelve 
good  and  lawful  men  of  his  bailiwick,  how  much  of  the 
yearly  rent  aforesaid,  at  the  time  of  taking  aiul  distraining 
the  said  ;;oods  and  chattels,  was  in  arrcarand  unpaid,  and 
how  much  the  said  goods  and  chattels  so  a«!  aforesaid  taken 
and  distrained,  were  worth  according  to  the  value  of  the 
same ;  and  that  the  inquisition  which  the  said  sherilV shall 
thereupon  take,  he  make  appear  to  our  said  Lord  the 
King,  on  w  iieresocvcr  our  said  J.onl  the  King  shall 

then  he  in  England^  under  his  seal  and  the  seals  of  those 
by  w  hose  oath  he  shall  lake  the  said  inquisition  ;  tojetlicr 
uith  the  w  rit  of  our  said  Lord  the  King  to  him  thereupon 
directed  :  the  same  day  is  given  to  llie  said  C.  D.  &r.  At 
which  day  before  our  said  Lord  the  King  at  U'lsiminstery 
comes  the  said  C.  D.  by  his  attorney  aforesaid,  and  the 
sherili"  of  to  wit  now  at  in  the  said  county, 

on  the  day  of  in  the  year  of  the 

reign  of  our  said  Lord  the  King,  by  the  oath  of  twelve 
gootl  and  law  ful  men  of  his  county  ;  whereby  it  api>cars, 
that  the  sum  of  of  the  said  yearly  rent  \\:is  in  ar- 

rear  and  unpaid,  and  due  and  owing  from  tiicsaid  A.  B. 
to  the  said  C.  D.  at  the  time  in  the  said  cognizance  men- 
tioned, and  of  I  lie  distress  taken  ;  ami  that  the  goods  and 
chattels  distrained  were  worth  according  to  tlic  value 
thereof  the  sum  of  /.     Therefore  it  is  considered 

that  the  said  C.  D.  do  recover  against  the  said  ./.  B.  the 
said  sum  uf  /.  being  the  arrearages  of  the  said  rent. 

by  the  said  inquisition  in  form  aforesaid  found,  anil  al.'u 
/.  by  the  Court  of  our  said  Lord  the  King  now  here 
adjudged  to  the  said  c.  D.  and  at  his  request,  for  his  costt 
and  charges  by  hlni  about  his  suit  in  this  behalf  sustained. 

7« 


M 


Precedents  in  Replevin. 


AiiJ  esecutiuii. 


Ko  xri, 

TliP  like  wnere 
the  ^oods  are 
foiimJ  to  If  of 
lo<i:  value  than 
Hie  rent. 


Kxtcution. 


^'n.  XIII. 

v>\<  a  niAii  qiros, 
(■ir  vvaiit  orajie- 
clatatioD.  ,!' 


Knli T  tliereol- 


uccortling  to  the  form  of  the  statute  in  such  case  made 
ami  provided  ;  Mliich  said  arrearages,  costs  and  charges, 
in  the  whole  amount  to  /.  and  that  the  said  C.  D. 

have  execution  thereof,  See. 

Therefore  it  is  considered,  that  the  said  C.  D.  do  re- 
cover against  the  said  yi.  B.  the  said  /.  parcel  of  the 
rent  aforesaid,  by  the  said  inquisition  in  form  aforesaid 
found,  and  his  damages  by  reason. of  the  premises  to  /. 
by  the  Court  of  our  said  Lord  the  King  now  here  ad- 
judged to  the  said  C.  D.  and  at  his  request,  for  his  costs 
and  charges  by  him  in  this  behalf  sustained,  according  to 
the  form  of  the  statute  in  such  case  made  and  provided  ; 
which  said  vali  e,  costs  and  charges,  in  the  \\  hole,  aifiount 
to  /.  And  that  the  said  C.  D.  have  execution  there- 
of, &c. 

George  the  Third,  c^^c.  to  the  sheriff  of  greeting  .- 

whereas  C.  D.  was  summoned  to  be  in  our  Court  before 
us,  to  answer  J.  B.  6f  a  plea  wherefore  he  took  the  cat- 
tle, goods  and  chattels,  of  the  said  J.  B.  and  unjustly  de- 
tained them  against  sureties  and'  pledges,  as  it  is  said  :  and 
the  said  A.  B.  afterwards  in  our  same  Court  before  us 
made  default  ;  wherefore  it  w  as  considered  in  our  same 
Court,  that  he  and  his  pledges  to  prosecute  should  be  in 
mercy,  &c.  and  that  the  said  C.  D.  should  go  thereof 
without  day,  &c.  and  that  l^e  should  have  a  return  of  the 
said  cattle,  goods  and  chattels :  therefore  we  command 
you,  that  without  delay  you  cause  the  said  cattle,  goods 
and  chattels,  to  be  returned  to  the  said  C.  D.  and  that 
you  do  not  deliver  them  on  the  complaint  of  the  said  ^.  B. 
without  our  writ,  which  make  express  mention  of  the 
judgment  aforesaid  ;  and  in  what  manner  you  shall  exe. 
cute  this  our  writ,  make  appear  to  us  on  whereso- 

ever we  shall  then  be  in  England  ;  and  have  there  this 
writ.     Witness,  &,c. 

to to  Avit.  C.  D.  by  his  attorney  offered  him- 
self on  tTie  fourth  day  against  A.  B.  of  a  plea  wherefore 
he  the  said  C.  D.  took  the  cattle,  goods  and  chattels,  of  the 
said  ^.  B.  and  unjustly  detained  them  against  sureties  and 
pledges,  &.C.  and  the  said  J.  B.  being  solemnly  called, 
came  not :  and  wa,?  the  plaintilT,  See. :  therefore  it  is  con- 
sidered, that  he  and  his  pledges  to  prosecute  be  thereupon 
in  mercy,  kc.  and  that  the  said  C,  D.  go  thereof  with- 
out day,  &c.  and  that  he  have  a  return  of  the  said  cat- 


1 


Prcadtnls  in   I\tji/(vin.  .yjl 

tie,  goods  nn'l  clmllcls,  AV.  ami  kl  flic  naiucfi  of  the 
pledges  he  iiujuired,  AV.  and  in  what  manner,  t,V.  let  the 
sheriJlniake  appear  to  our  Lurd  the  Kiiii^;,  on 
wheresoever,  t^  c 


on  • 


Ci'rorc^c  tlic  Third,  <^c.  to  the  sheriff  of  greeting  :  Ttl^iiVao 

wlieroas  ('.  D.  wa=  Pniiiniomd  to  he  in  our  Court  l.cforc  u"^i"»J^"* 
lis,  to  answer  ./.  li.  in  a  plei  therefore  the  said  C.  p.  nu 
the  day  of  in  the  year  of  our  Lord  at 

thepnrisliof  in  the  county  of  in  a  certain 

place  there  called  took  the  cattle,  rroods  atul  chat- 

tels, of  him  the  said  ./.  li.  to  wit,  etc.  [here  s>t  out  tU 
rattle  and goqds  as  in  tlic  drclaration]  and  unjustly  ihs 
tain.^d  the  same  ap:ainst  sureties  and  pledges,  until,  etc.  a.s 
it  was  said  :  and  the  siiid  C.  D.  appearing  in  our  said  Court 
before  up,  for  certain  causes  by  him  allcdi^ed  in  our  same 
Court,  as  bailiff  of  />.  /'.  well  acknowledged  the  taking 
of  the  said  cattle,  goods  and  chattels,  in  the  said  place  in 
"vvhich,  etc.  and  unjustly,  clc.  for  damage  there  iloiw, 
[or  for  certain  arrears  of  rent,  to  w  it,  for  the  sum  of  /, 
due  and  in  arrear  fron)  the  said  J.  Ji.  to  the  said  C.  I>. 
for  the  said  place  in  which,  etc.  with  the  aiipurtenanccs, 
held  and  enjoyed  under,  and  by  virtue  of,  a  certain  demise 
thereof,  made  by  the  said  C.  D.  for  the  space  of  next 
before  and  ending  on  the  day  of  in  the  year  of 

our  Lord  :]  whereupon  the  said  yf.  li.  being  after- 

wards solemnly  called  in  our  said  Court  before  us,  came 
not,  nor  did  he  further  prosecute  his  writ  aforesaid  : 
wherefore  it  was  considered  in  our  said  Court  before  us, 
at  Westminster,  that  the  said  A.  B.  should  take  nothinj; 
by  his  writ  aforesaid,  but  that  he  and  his  pledges  to  pro- 
secute should  be  in  mercy,  etc.  aud  th  it  the  said  C.  D. 
should  go  thereof  without  day,  etc.  ami  that  he  should 
have  a  return  of  the  said  cattle,  uioods  and  chattels :  there- 
fore we  command  you,  that  without  delay  you  cause  the 
said  cattle,  goods  and  chattels,  to  be  returned  to  the  said 
C.  D.  and  that  you  do  not  deliver  them  on  tlic  complaint 
of  the  said  A.  B.  witliout  our  writ,  which  makes  express 
mention  of  the  judgment  aforesaid  ;  and  in  wliat  manner 
you  shall  have  executed  this  our  writ,  make  appear  to  us, 
on  wheresoever,  clc.  and  have  there  this  writ. 

\A'itncss,  etc. 

/"/roro-r  the  Third,  etc.  to  the  fhcriff  of        g:rceting  : 
Whereas  C.  D-  was  summoned  to  be  in  ou    iCourt  before 


592  Precedents  in  Ejectment^  isc. 

us,  cifc.  [as  in  the  last,  to  the  end  for  a  return,  and  then  ai> 
follows ;]  and  also  that  the  said  C  D.  ought  to  recover 
against  the  said  A.  B.  his  damages  on  occasion  of  the 
premises,  according  to  the  form  of  the  statute  in  such 
case  made  and  provided.  Therefore  we  command  you, 
that  without  delay  you  cause  the  said  cattle,  goods  and 
chattels  to  be  returned  to  the  said  C.  Z).  ^c.  [as  in  the 
last,  to  wheresoever,  ^c  ;"]  and  also  that  by  the  oath 
of  honest  and  lawful  men  of  your  country,  you  diligently 
inquire  what  damages  the  said  C.  D.  hath  sustained,  as 
well  on  occasion  of  the- premises,  as  for  his  costs  and 
charges,  by  him  about  his  suit  in  this  behalf  expended ;  and 
the  inquisition  which  you  shall  thereupon  take,  make  ap- 
pear to  us  at  the  aforesaid  time,  wheresoever,  k^c.  under 
your  seal  and  the  seals  of  those  by  whose  oath  you  shall 
take  that  inquisition  ;  and  have  there  the  names  of  them 
by  whose  oath  you  shall  take  that  inquisition,  and  this  writ. 
Witness,  iJc. 


Proceedings  in  EjectmenL 
„.No.T.  GEORGE  the  Third,  by  the  grace  of  God  of  the 

Original  writ.  >       j  o 

united  kingdom  of  Great  Britain  and  Ireland,  king, 
defender  of  the  faith,  to  the  sheriff  of  greeting.     If 

J.  B.  shall  give  you  security  to  prosecute  his  claim,  then 
put  by  gage  and  safe  pledges  c.  -O.  late  of  yeoman, 

so  that  he  be  before  us  on  the  morrow  of  All  Souls, 
wheresoever  we  shall  then  be  in  England,  to  shew  where- 
fore with  force  and  arms  he  entered  into  one  messuage, 
w ith  the  appurtenances,  in  which  E.  F.  esquire  hath 
demised  to  the  aforesaid  A.  S.  for  a  term  which  is  not  yet 
expired,  and  ejected  him  from  his  said  farm,  and  other 
enormities  to  him  did,  to  the  great  damage  of  the  said 
J.  B.  and  against  our  peace.  And  have  you  there  the 
names  of  the  pledges,  and  this  w  rit.  Witness  ourself  at 
Westminster,  the  day  of         in  the         year  of  our 

reign. 

Pledges  to  prosecute,  {;^tLf/i2c.. 

The  within  named  C.  D.  C  John  Den, 
is  attached  by  pledges,  X  liichard  Fen. 


Precedents  tn   F-'/nf/iitnf,  Xt.  .j93 

In  the  J\iii[r''s  lirnrh, 
Easier  I'crin,  in  the  I  Uli  v'Mr  of  the  rei;;n  of  (leorqt  the 
■I'hinl. 

towil,  (..  IJ.  l.itc  of  yeoman  waii  allachcd 

to  answer  unto         of  plea  wherefore  the  said  C.  IJ.  with  ',  ,^,^,  .^^  ,^ 
force  and  arms,  &c.  entered  into  messuages,  &c. 

[//rre  dcsrribi'i'.r  the  prcniius']  with  tl>c  api)iirteniinccs, 
situate  and  heini;  in  the  parish  of  in  tliu  county  of 
which  E.  F.  had  demised  to  the  saitl  jJ.  Ji.  for  a  term 
which  is  not  yet  expired  ;  and  ejected  him  from  his  said 
farm,  and  other  wron;,'S  to  tliesaid  ./.  H.  tliero  diil,  to  the 
great  damage  of  the  said  ,7.  U.  and  a^^ainst  the  peace  of 
our  I>ord  the  now  King,  ijc.  And  thercuiHm  the  eaid 
^.  li.  by  his  attorney,  complains,  that  whcrc.»s  the 

«ai(l  /.'.  /•".  on  the  day  of  in  the  year  of  our 

I   'III  at  the  parisli  aforesaid,  in  the  county  afore- 

said, had  demised  the  said  tenements  with  their  appuile- 
nanccs  to  the  said  A.  B.  to  have  ntid  to  hold  the  same  un- 
to the  said  j1.  B.  and  his  assigns,  from  the  day  of 
the  said  month  of  for  and  during,  and  <o  tl»e  full 
end  arifl  term  of  seven  years,  from  thence  next  ensuing, 
and  fully  to  he  complete  and  ended.  By  virtue  of  which 
demise,  the  A.  3.  entered  into  the  said  tenements 
with  the  appurtenances,  and  was  tliereof  possessed  for 
the  said  term  so  to  him  thereof  demised,  and  the  said 
A.  B-  being  so  tlicrcof  possessed,  the  said  C  D.  after- 
wards, to  wit,  on  the  day  of  in  the  year  afore- 
said, with  force  and  arms,  l^c.  entered  into  the  said  tene- 
ments with  the  apj)urtcnances,  which  the  raid  E.  F. 
had  demised  to  the  said  A.  B.  in  manner  ami  for  the  term 
aforesaid,  which  is  not  yet  expired  ;  and  ejected  the  said 
A.  B.  from  his  said  farm,  and  otiicr  wrongs  to  the  said 
A.  B.  then  and  there  did,  to  the  great  damage  of  the- said 
A.  B'  and  against  the  peace  of  our  said  liOrd  the  now 
King;  wiierefore  the  said  A-  B.  s.iith,  that  he  is  injured 
and  h'lth  sustained  damage  to  tlic  value  of  /.  and 
therefore  he  liring  his  suit,  fefc. 


Mr. 

I  am  informed  that  you  arc  in   posse*;" ion   of,  or 

claim  title,  to  the  prcmi.'-es  in  this  declaration  of  eject- 
ment mentioned,  or  to  some  pirt  thereof.  .Xnd  I  being 
sued  in  this  action  as  a  casual  ejector  o;ily,  and  having  no 
claim  or  title  to  the  same,  do  advise  you  to  appear  on  the 


(•r4r. 


594 


Precedents  in  Ejectment^  SCc. 


first  day  of  next  Trinity  Term  [in  town  or  in  the  country, 
"  in  next  Trinity  Term^*]  in  his  Majesty's  Court  of  King*s 
Bench^  wheresoever  his  said  Majesty  shall  then  be  in  Eng- 
land^ by  some  attorney  of  tliat  Court,  and  then  and  there 
by  rule  of  the  same  Court  to  cause  yourself  to  be  made 
defendant  in  my  stead.  Otherwise  I  shall  suffer  judg- 
ment therein  to  be 'entered  against  me  by  default,  and 
you  will  be  turned  out  of  possession.     . 

Yours,  &c. 

C.  D. 


T.o.  \\\. 
Declaration  by 
bill. 


^o.  IV. 

The  like  tiy  ori- 
;nnal  on  a  don- 
blp.  deriiisc,  with 
niie  ouster. 


ss.  J.  B.  complains  of  C.  D.  being  in  the  cus- 
tody of  the  marshal  of  the  Marshalsea  of  our  Sovereign 
Lord  the  King  himself,  for  that  whereas  E.  F.  on  the 
day  of  in  the  year  of  the  reign  of  ouf  Lord 
the  now  King,  at  in  the  county  of  had  demised, 
to  the  said  ^.  B.  messuage,  «&c.  [reciting  the  several  par- 
cels] with  the  appurtenances,  situate,  lying  and  being,  in 
the  parish  of  in  the  said  county  of  to  have  and  to 
hold  the  said  tenement,  with  the  appurtenances,  to  the 
said  J.  and  his  assigns,  from  the  day  of  then  last 
past,  to  the  full  end  and  term  of  five  years  from  thence 
next  ensuing,  and  fully  to  be  complete  and  ended ;  by 
virtue  of  which  said  demise,  he  the  said  A.  entered  into 
the  said  tenements  with,  the  appurtenances,  and  was 
thereof  possessed  until  the  said  C.  afterwards,  that  is  to 
say,  on  the  day  of  in  the  year  aforesaid,  with 
force  and  arms,  &c.  entered  into  the  said  tenements  with 
the  appurtenances,  which  the  said  E.  F.  had  demised  to 
the  said  ^.  in  manner  aforesaid,  for  the  term  aforesaid, 
which  is  not  yet  expired,  and  ejected  the  said  A.  out  of 
]ns  said  farm  ;  and  then  and  there  did  other  wrongs  to  the 
said  A.  against  the  peace  of  our  said  Lord  the  King,  and 
to  the  damage  of  him  the  said  A.  of  twenty  pounds,  and 
thereupon  he  brings  his  suit,  &c. 

-r>,    ,        X  i        ^  John  Doe, 

Pledges  to  prosecute,    \  ji^,f^,,,d  j^,,^ 

The  notice  to  this  declaration  is  the  same  as  the  last, 
only  instead  of  the  words,  wheresoever,  &c."  must  be 
substituted  "  at  Westminster.''* 

< 

In  the  King's  Bench. 

Easter  Term,  44ith  Geo.  IIL 

to  wit.  c.  D.  late  of  j'eoman,  was  at- 
tached to  answer  unto  A.  B.  of  a  plea  wherefore  the 
said  C.  D.  vv  itli  force  and  arms,  &c.  entered  into 


Precedents  in  FJirtmcnt,  fi>'r.  [ff)> 

incsFuage?,  tVc.  [(Uscrihini^  tli-  priwi:,is]  uiili  llic  appui- 
tenanccs,  s!tu;ilc  and  bciiit;  in  llic  |mri>li  ui  in  tlic 

county  of  uhich  ^.  /•'.  had  tIeniiHcl  to  llir  said  jf. 

B.  for  a  term  wliirh  i.s  not  yet  cxpind,  and  cji rlcd  him 
from  his  said  farm.  And  also,  wlicrtforc  the  paid  C.  D. 
\\'\\\\  force  and  arms,  ^^c.  entered  into  other  mes- 

suages, &c.  uith  the  appurtenances,  situate  and  lieitig 
in  the  parish  aforesaid,  in  the  county  aforesaid,  winch 
li.  JI.  had  demised  to  the  said  ^.  B.  for  a  term  uhich 
is  not  yet  expired,  and  ejected  him  from  liis  taid  Ia5l 
iuentioncd  farm,  and  other  ^^rotl^s  to  tiie  said  A.  B,  and 
against  the  peace  of  our  J. ord  the  now  Kinsr,  &c.  And 
tliereupon  tiiesaid  A.  B.  by  his  attorney  complains,  that 
whereas  the  said  E.  F.  on  the  day  of  in  the 

year  of  our  1-ord  at  the  parish  aforesaid,  in  the 

county  aforesaid,  had  demised  the  said  tenements  first 
above-mentioned,  with  the  appurtenances,  to  the  said 
A,  B'  to  have  and  to  hold  the  same  unto  the  said  //.  B. 
and  his  assigns,  from  the  day  of  the  said  month 

of  for  and  during  and  unto  the  full  end  and  term 

of  seven  years,  from  thence  next  ensuing,  and  fully  to 
be  completed  and  ended.  And  also,  that  whereas  the 
said  (J.  II.  on  the  day  of  in  the  year  of  our 

Lord  at  tlic  parish  aforesaid,  in  the  county  afore- 

said, had  demised  the  said  tenements  secondly  above- 
mentioned  with  the  appurtenances,  to  the  said  A.  B.  to 
have  and  to  liold  the  same  unto  tlic  said  A.  B.  and  his 
assi,"^ns,  from  the  day  of  the  said  jnonlli  of 

for  and  during,  and  unto  the  full  end  and  term  of  seven 
years  from  thence  next  ensuing,  and  fully  to  be  complete 
and  ended  ;  by  virtue  of  Mliich  said  several  demises,  the 
said  J.  II.  entered  into  the  said  tenements  hrst  and 
secondly  above-mentioned,  with  the  ai)purlenances,  and 
was  thereof  possessetl  for  the  said  several  terms  so  to  him 
thereof  demised,  and  being  so  thereof  posscssctl,  the 
said  C.  D.  after\\'ards,  to  wit,  on  the  day  of 

in  the  year  aforesaid,  with  force  and  arms,  <^-r.  entered 
into  the  said  tenements  first  and  secondly  above-men- 
tioned, with  the  appurtenances,  w  hich  he  the  said  /..  /■. 
and  G.  //.  had  so  respectively  demised  to  the  said  ./.  B. 
in  manner,  and  for  the  several  terms  aforesaid,  which 
are  not  expired  ;  and  ejected  the  said  A-  B.  from  his 
several  farms,  and  other  wrongs  to  the  said  A.  B.  then 
and  there  did,  to  the  great  damage  of  the  said  A.  B. 
and    against    the    peace    of   our    said    T-orl    the  now 


596  Precedents  in  Ejectment^  S'c. 

King  ;  wherefore  the  said  A.  B.  saitli,  that  he  is  injured 
and  hath  sustained  damage  to  the  value  of  /.  and 

therefore  he  brings  his  suit,  Src. 

Notice  as  before. 

In  the  King's  Bench. 
r^u^'P,  ^'  .u  Easter  Term,  44th  Geo.  III. 

Th«  like  with  -  ' 

two  oubters.  ^q  ^,.j^^  q  D,  late  of  yeoman,  was  at- 

tached to  answer  unto  ^.  B.  of  a  plea  wherefore  the 
said  C  D.  with  force  and  arms,  &c.  entered  into 
messuages,  &c.  [describing  the  premises]  \vith  the  appur- 
tenances, situate  and  being  in  the  parish  of  in  the 
county  of             which  E,  F.  had  demised  to  the  said  A. 
B.  for  a  term  which  is  not  yet  expired  ;  and  ejected  him 
from    his   said   farm.     And    also,    wherefore    the   said 
CD.  with  force  and  arms,  &c.  entered  into  other  mes- 
suages, &c.  with  the  appurtenances,  situate  and  being 
in  tlie  parish  aforesaid,,  in   the  county  aforesaid,  which 
G.  H.  had  demised  to  the  said  A.  B.  for  a  terra  which 
is  not  yet  expired  ;  and  ejected  him  from  his  said  last 
mentioned  farm,  and  other  wrongs  to  the  said  ^.  B. 
then  did,  to  the  great  damage  of  the  said  J.  B.  and 
against  the  peace  of  our  Lord  the  now  King,  &c.     And 
thereupon  the  said  A.  B.  by                  his  attorney  com- 
plains, the  said  E.  F.  on  the             day  of              in  the 
year  of  our  Lord                 at  the  parish  aforesaid,  in  the 
county  aforesaid,  had  demised  the  said  tenements  first 
al)ove-mentioned,  \^ith   the  appurtenances,  to  the  said 
A.  B.  to  have  and  to  hold  the  same  unto  the  said  A.  B. 
and  his  assigns,  from  the              day  oi                 then  last 
past,  for  and  during,  and  unto  the  fuJ!  end  and  term  of 
years,  from  thence  next  ensuing,  and  fully  to  be 
complete  and  ended.     By  virtue  of  which  said  demise, 
ihesaid  A.  B.  entered  into  the  said  .tenements  with  the 
appurtenances  first  above-mentioned,  and  became,  and 
was  thereof  possessed,  for  the  said  term  so  to  him  there- 
of granted  ;  and  the  said  A.  B.  being  so    thereof  pos- 
sessed, the  said  C.  D.  afterwards  [to  wit.]  on  the 
day  of        in  the  year  aforesaid,  with  force  and  arms,  &c. 
entered  into  the  said  tenements  with  the  appurtenances 
first  above-mentioned,  which  the  said  £.  F.  had  demised 
to  the  said  A.  B-  in  manner,  and  for  the  term  aforesaid, 
which  is  not  expired  ;  and  ejected  the  said  A.  b-  from 
his  said  first  mentioned  farm.     And  also,  that  whereas  tlic 
said  G.  R.  on  the            day  of             in  the  year  afore- 


Prccf (hills  ill    /yirlmtnl,  At.  jU' 

sai(I,  at  lli<;  i);iii-li  aforesaid,  in  the.  couuly  afnrcimiil, 
had  deinisi'd  tiio  said  tiiicmeiits  uitlj  tin-  ai)|)iiil«:i..uiccii 
secondly  almve-incnliont'd,  to  the  said  ^y.  II.  to  havi; 
and  to  hold  the  same,  unto  the  said  A.  B.  and  hi^  a  :- 
si^Mis,  froui  the  day  of  then  hist  past,  for 

and  durini,',  and  unto  the  full  nid  and  trrni  of  sivin 
years,  from  thence  next  cnsninu,  and  fully  to  l»e  cjm- 
ph'te  and  ended.  By  virtue  of  w  hieh  said  list  nutitioiied 
ilemiie,  the«aid  Jl.  B-  entered  intc)  tiie  tenemenis  h  ith 
the  appurtenances  secondly  aljove-nientioned,  ie.  and 
became,  and  was  thereof  possessed,  for  tlie  said  term  so 
to  him  thereof  granted  ;  and  the  sdd  A.  B.  bein^;  so 
thereof  possessed,  tlie  said  C.  D.  aflerward?,  [to  wit.] 
on  the  said  day  of  in  the  year  aforesaid, 

■with  force  ami  arms,  A'r.  entered  into  the  said  t«ne- 
nients  with  the  appurtenances  secondly  ahove-nuntioned, 
which  tiie  said  G.  H  had  so  denused  to  the  said  A.  B. 
in  maimer,  and  for  the  term  last  aforesaid,  wliich  is  not 
yet  expired,  ami  ejected  the  said  A.  IL  from  his  said 
last- mentioned  farm,  and  other  wrongs  to  the  said  --/.  IL 
then  and  there  did,  to  Ihc  threat  damage  of  the  said  A.  li. 
and  against  tlie  peace  of  our  said  Lord  the  now  king. 
A\'hcrefore,  the  said  4.  B.  saith  that  he  is  injured,  and 
hath  sustained  damage  to  the  value  of  /.  and  there- 

fore he  brings  his  suit,  &c. 

Notice  as  before. 

In  the  Klng^s  Dmrh. 

A.  B.  on  demise  of  K.  I',  plainlifl', 
Between        S-  and  Amrt»v.{.,r 


} 


»*.rvi<c  ufO^ 

CD.         -         -  -     defendant.       ^■^'  .  .t...u.  «»>fr* 


S.   S.  of,  ScC   malccth  oath,  and   saith,  that    he  this 
deponent  did,  on  the  day  of  last, 

deliver  a  true  copy  of  the  declaration  and  notice  here- 
unto annexed,  to /r.  /'.  tenant  in  possession  of  tl:c  pre 
niibcs  in  the  said  declaralion  mentioned  ;  and  at  the  same 
time,  told  hiiu  it  was  a  declaration  in  ej-  ctment,  and 
that  iniless  he  did  apptar  tliereiuilo,  by  some  attorney  of 
this  llonouraI)le  Court,  on  the  hrsi  day  of  the  present 
Term,  judgment  would  be  entered  against  the  wid 
defendant  by  default,  and  the  saiil  //'.  J',  would  Im: 
turned  out  of  possession;  [or  word?  to  that  or  the   lib 

effect.] 

Sworn,  ^"^c.  ^'  ^'- 


but  on* 


;j98  Frccedcnls  in  Ejtclmmt,  Sic, 

^.  ^°\}\-  ,  S.  S^.  &c.  niaketh  oath  and  sailh,  that  he  this  de- 
ri'^ral'Tei^nts  poiient  did  on,  &c.  last,  deliver  a  true  copy  of  the  de- 
claration and  notice  hereunto  annexed,  to  W.  T.  tenant 
In  possession  of  part  of  the  premises  in  the  said  deciara- 
lion  mentioned;  and  did  also,  on  the  same  day,  deliver 
another  copy  of  the  said  declaration  and  notice  to  D.  the 
wife  of  /.  T.  tenant  in  possession,  of  the  residue  of  the 
premises  in  the  said  declaration  mentioned,  she  the  said 
D.  then  being  thereon.  And  tliis  deponent  further  saith, 
that  he  told  them  severally  that  it  was  a  declaration  in 
ejectment,  and  that  unless  they  did  severally  appear 
thereto,  by  some  attorney  of  this  Honourable  Court,  on 
the  first  day  of  this  present  term,  judg- 

ment would  be  entered  against  the  said  defendant  hy  de- 
fault, and  they  the  said  W.  T.  and  I.  T.  would  be 
severally  turned  out  of  possession  ;  [or  words  to  that  or 
the  like  effect.] 

Sw^orn,  &c.  S.  S. 

A.  on  a  demise  of  F.  against  C. 

Ruie^for  judgment.  Unlcss  the  tenant  in  possession  of  the  premises  in 
question  shall  appear  and  plead  to  issue  on  Tuesday  next 
after,  &c.  {time  tenant  is  to  appear  in)  le:]^  judgment  be 
entered  for  the  plaintiff  against  the  now  defendant  C.  by 
default  upon  the  motion  of  Mr.  D. 

By  the  Court. 

Note.  If  plaintiff  does  not  move  for  judgment  the 
same  Term  tenant  had  notice  to  appear,  the  court  will 
not  grant  such  rule. 

Note.  When  you  move  for  a  rule  for  judgment  you 
annex  the  affidavit  of  service  to  a  copy  of  the  declaration 
stamped,  and  give  it  to  counsel  with  IO5.  6d.  fee  to 
move.  The  clerk  of  the  rules  files  the  affidavit  and 
declaration  on  such  motion,  therefore  keep  by  you  ano- 
ther copy  on  stamp,  or  if  judgment  go  against  the 
casual  ejector  for  want  of  tenant's  entering  into  the  rule, 
you  must  have  an  office  copy  of  the  declaration  from 
the  clerk  of  the  rules  in  order  to  enable  you  to  sigu 
judgment. 


Pni\il(  Ills  in  I'jtilniinl,  cS  r,  TiOO 


77(1-  (oininoii    liitit    of  ('iniii. 

IlHart/  Term,  the  tutnty-niiilli  year  of  Kin,;^  George 
the  Stcotul. 

licrkshirc  to  tvU.     It  is  ordered  l)y  tlic  Court,  by  the 
assent  of  botli  parties,  ami  their  altornief;,  that  (ironic 
.S!f«/N</rrf,*gcntlciu;iii,  may   be  made   dcrtmlaiit  in   the 
place  of  the  novv  defendant  William  Slilcs^  unil  .shall  iui- 
luediatcly  appear   to    the    j)laintirt's    action,  and  hhall 
receive  a  ilcclaration  in  a  pica  of  trespass  and  ejiclnient 
of   the  tenements  in    quest  ion,  and  shall    inunedialely 
pk'ul  thereto,  not  guilty  ;  and,  upon  the  trial  of  the 
issue,  shall  confess  lease,  entry,  and  ouster,  and    insist 
upon  his  tille  only.     And  if,  upon  trial  of  the  issue,  the 
said  Grorgr  do  not  confess  lease,  entry,  and  oufiler,  and 
by  reason  thereof  the  plainlilV  cannot  prosecute  liis  uril, 
then  the  taxation  of  costs  upon  such  nun-pros,  shall  cease, 
and  the  said  Gcoree  sliall  pay  Such  costs  to  the  plaintiir, 
as  by  the  Court  of  our  liOrd  the  Iving  here  shall  be  laxed 
and  adjudged  for  such  liis  default  in  non-pcrfornionce  of 
this  nile  ;  and  judgment  shall  be  entered  against  the  said 
William  S/ilrSy-now  the  casual  ejector,  by  default.     And 
it  is  further  ordered,  that,  if  upon  trial  of  the  said  hn\c 
a  verdict  sliall  be  given  for  the  defendant,  or  if  the 
j)laintiiV  shall   not  prosecute  his  writ,  upon   any  other 
cause  than  for  liie  not  confessing  lease,  entry,  and  ouster, 
as  aforesaid,  then  the  lessor  of  the  plaintiii"  sliall  pay  ru.'ts, 
if  the  plaintiff  himself  doth  not  pay  them. 

l)y  tlie  Courl. 

When  the  proceedings  arc  by  hill,  and  not  by  original, 
the  words  "  and  file  common  bnii''-  should  be  inserted  after 
the  words  requiring  the  tenant's  appearance;  and  the 
word  bill  should  stand  in  the  room  of  the  word  r>rit, 
thrdughout. 

A.  on  the  demise  of  F.  against  (\ 


Sir, 
Take  notice  that  I  defend  a  title  for  a  messuage  and   ^" 
garden,  with  the  ajtnnrtcnances,  in  the  parish  of  ^1,^, 

in  the  county  of  now  in  ivosscfsion  of  the 


600  Precedents  in  Ejectment,  Sfc. 

said  I.  F.  or  liis  under-tennnt.     Dated  the 
day  of  1801. 

To  Mr.  R  R  Yours,  ^c. 

the  plaintiff 's  attorney  i*.  p. 

These.  defendant's  attorney. 

y,^SJlrnii        As  yet  of  term,  (ffr.  to  wit.     John  Doe 

^m!«^da!,ma.'''  OH  thc  demisG  of  J.  B.  puts  in  his  place  'E.  F.  his 
attorney,  against  Richard  Roe,  in  a  plea  of  trespass  and 
ejectment. 

to  wit,  the  said  Richard  Roe  in  person,  at  the  suit 

of  the  said  John  Doc,  in  the  plea  aforesaid. 

to  wit.     Be  it  remembered,  that  in 

Term  last  past,  before  our  Lord  the  king  at  IFestminster, 
came  John  Doe  by  E.  F.  his  attorney,  and  brought  into 
the  Court  of  our  said  Lord  the  king  himself  then  there, 
his  certain  bill  against  Richard  Roc,  being  in  the  custody 
of  the  marshal  of  the  marshelsea  of  our  said  Lord  {"ne 
king  before  the  king  himself  of  a  plea  of  trespass  and 
ejectment :  and  there  are  pledges  for  the  prosecution 
thereof  to  wit,  John  Derm,  and  Richard  Fenn ;  which 
said  bill  follows  in  these  words ;  that  is  to  say  :  John  Doe 
complains  of  Richard  Roe  being  in  the  custody  i^c.  (Jicre 
y  copy  the  declaration  to  the  end,  omitting  the  pledges  and 

notice ;  and  then  proceed  on  a  new  line  as  folLons ;) 

And  now  at  this  day,  that  is  to  say,  on  next 

after  in  this  same  Term,  until  which  day  the 

said  Richard  Roe  had  leave  to  imparl  to  the  said  bill,  and 
then  to  answer  the  same,  l^c.  before  our  said  Lord  the 
king  at  Westminster,  come  as  well  the  said  John  Doe  by 
his  attorney  aforesaid,  as  the  said  Richard  Roe  in  his 
proper  person  ;  and  the  said  Richard  Roe  defends  the 
force  and  injury  when,  ^c.  and  says  nothing  in  bar  or 
preclusion  of  the  said  John  Doe  ;  whereby  the  said  John 
Doe  remains  therein  undefended  against  the  said  Richard 
Roe,  therefore  it  is  considered  that  the  said  John  Doe 
recover  against  the  said  Richard  Roe  his  said  term  yet 
to  come  of  and  in  the  tenements  aforesaid  with  the  ap- 
purtenances, and  also  his  damages  sustained  by  reason  of 
the  trespass  and  ejectment  aforesaid ;  and  hereupon  the 
said  John  Doe  freely  here  in  Court  remits  to  the  said 
Richard  Roe,  all  sue'.!  damaa;es,  costs,  and  charges  as 
luiglit  or  ouglit  to  be  adjudged  to  him  the  said  John  Doe, 
by  reason  of  the  trespass  and  ejectment  aforesaid :  There- 


Vrcrcdents  in  Fjrctmnil,  \'r.  Ooi 

fore  let  to  tlic  saiil  liicliurd  Hoc  l)C  acquitted  of  tliosc 
damages,  ccst?  and  clinrgop,  AV.  And  Im  icnpon  tin-  «aid 
John  Dor  prays  tlie  writ  of  our  Faid  Lord  the  Kir--^  lo  l)c 
directed  to  the  sheriir  of  the  cr)iinty  aforesaid,  to  caii5C 
luni  to  have  possession  of  his  said  term  yet  to  come  of  an<l 
in  the  tenements  aforesaid  with  the  appnrtenances:  atul  it 
is  granted  to  liiui,  returnable  before  our  said  Lord  the 
king  at  U'cstnunsftr,  on  next  after  ;  the  same 

day  is  given  to  the  said  Richard  Roc,  there,  A'c. 

{Kntrjj  of^narrnnts  ofatlornri/,  as  in  tin-  last.") 

to  wit.     Richard  Roe  was  attaclicd,  W<-.  [lirrc 

fopi/  the  declaration  to  the  aidy  and  then  proceed  as  fol- 
io ns  .-] 

And  the  said  Ric  hard  J\or  in  his  jiroper  person  comes 
and  defends  the  force  and  injury  when,  etc.  and  says 
nothing  in  bar  or  preclusion,  etc.  [^as  Ixforc,  vhilcimr  the 
nrit  of  possession  returnable  on  a  general  return  da^.] 

[  To  the  end  of  the  issue,  and  then  as  follows  ;]  ,  '     ^''  , 

At  which  day,  liefore  our  said  Lord  the  king  at  West.  ,  /* 

minster,  come  tlie  parties  aforesaid,  by  tluir  attornies 
aforesai<I  ;  and  hereupon  the  said  (\  I),  reliiujuishltm  \nn 
said  plea  by  liim  aI)ove  jileadcd,  says  tlint  he  cannot  deny 
the  action  of  the  said  A.  Ji.  nor  I)td  lie  the  said  C.  D. 
is  guilty  of  the  tresj)ass  and  ejectment  above  laid  to  his 
charge,  in  manner  and  form  as  tlie  sai  i  .•/.  li.  hath  above 
thereof  complained  against  liim  ;  and  he  confesses  ami  ad- 
mits that  the  said  J.  B.  hath  sustained  damages,  by  re^ison 
of  the  said  trespass  and  ejectment,  to  tlicsum  of  one  p'-nny, 
besides  his  costs  and  cliarges,  by  him  about  this  suit  in 
this  behalf  expended.  And  hereupon  the  said  ./.  B. 
freely  here  in  court  remits  to  tlie  said  C-  D.  the  residue 
of  the  damages  in  the  said  declaration  njcntiuncd,  arij 
prays  judgment  and  his  term  yet  to  come  of  and  in  11»e 
tenements  aforesaid  with  the  a^ipurtenanccs,  together 
with  his  said  damages  so  confesssed,  and  his  cobts  and 
ciiarges  aforesaid,  to  be  adjudged  to  him,  etc.  There-  ;,'|^'''; 
fore  it  is  considered,  that  the  .said  //,  Ji.  dp  n cover 
against  the  said  C.  D.  his  said  term  yet  to  come  of  and 
in  th§  tenements  aforesaiil  with  the  apjiurtenanccs,  toge- 
ther with  the  damages  aforesaid,  to  tlie  sum  of  one 
penny,  in  form  aforesaid  confc^^sed,  and  also  /.  for 

his  said  costs  andchargcs,  by  tiie  court  of  ourFii*!  l/4»r(l 
the  king,  now  here  adjudged  to  the  s;iid  ./.  /?.  and 
Avith  Ills  absent  ;  ^^•hich  said  dama;;es  costs,  and  charges 


602  Frecedenis  in  Ejectmenty  Si\: 

iu  the  whole,  amount  to  /.     And  h  reupon  the 

said  J.  B,  praj^s  the  writ  of  our  said  Lord  the  king,  to 
be  directed  to  the  sheriif  of  aforesaid,  to  cause 

him  to  have  possession  of  his  said  term  yet  to  come,^f  and 
in  the  tenements  aforesaid,  with  the  appurtenances ;  and 
it  is  granted  to  him,  returnable  before  our  said  LiOrd  the 
king,  on  wheresoever,  etc. 

TheTike^or  the  t  ^^  ^^^  ^^^  ^f  ^^^  issuc,  and  then  as  follows ;] 

of'hfJreS!'^  At  which  day,  before  our  said  Lord  the  king  at  West- 
^^Tmll'LiTlmsc.  minster,  come  the  parties  aforesaid,  by  their  attornies 
5«^as  to  the  resi-    aforesaid  ;  and  hereupon  the  said  C.  D.  as  to  parcel 

of  the  tenements  in  the  said  declaration  mentioned,  re- 
linquishing his  said  plea,  by  him  above  pleaded,  says, 
that  he  cannot  deny  the  action  of  the  said  John  Doe,  nor 
but  that  he  the  said  C.  D.  is  guilty  of  the  trespass  and 
ejectment  above  laid  to  his  charge,  in  manner  and  form 
as  the  said  Jobi  Doe  hath  above  thereof  complained 
against  him.  And  upon  this,  tlie  said  John  Doe  says, 
that  he  will  not  further  prosecute  his  suit  against  the 
said  C.  D.  for  the  trespass  and  ejectment  in  the  residue 
of  the  tenements  aforesaid  ;  and  he  prays  judgment  and 
his  term  yet  to  come,  of  and  in  the  said  with  the 

appurtenances,  parcel,  etc.   together  with   his  damages, 
s4Ded,^&c.  *^^^^s  ^"<i  charges, by  him  in  this  behalf  sustained  :  There- 

fore it  is  considered,  that  the  said  John  Doe,  do  recover 
against  the  said  C.  D.  his  said  term  yet  to  come,  of  and 
in  the  said  Avith  the  appurtenances,  parcel,  etc. 

and  also  /.  for  his  ssaid  damages,  costs  and  charges, 

by  the  Court  of  our  said  Lord  the  king  now  here  ad- 
judged, to  the  said  Jo/m  Doe,  with  his  assent,  and  the 
assent  of  the  said  C\  D.  And  let  the  said  C.  D.  be  ac- 
quitted of  the  said  trespass  and  ejectment,  in  the  residue 
of  the  tenements  aforesaid,  and  go  thereof  without  day, 
etc.  And  the  said  John  Doe  prays  the  w^it  of  our  said 
Lord  the  king  to  be  directed  to  the  sheriff  of  afore- 

said, to  cause  him  to  have  possession  of  his  said  term  yet 
to  come,  of  and  in  the  said  with  the  appurtc- 

nances^  parcel,  etc.  and  it  is  granted  to  him,  returna- 
ble before  our  said  Ijord  the  king,  on  virhatso- 
ever,  etc.  * 
special  verdict.  Afterwards,  that  is  to  say,  on  the  day  and  at  the  place 
within  contained,  etc.  [as  in  a  common  postea,  to  the  finding 
of  the  jury,  7ihic)i  varies  according  to  facts  of  the  case,  and 
concludes  as  follows  •.]h\x\.  whether  or  not  upon  the  whole 


Prfccdcnfs  m  i  /rdnunl,  <N  r.  t]Q^i 

nutter  a forcMiil,  hy  the  jurors  ;ifi»rf.-aJil  in  form  aforrealJ 
(oiitid,  tiic  said  ('.  I),  is  guilty  of  the  trispiss  and  •-<♦. 
ment  uithin  fpccified,  the  jurors  aforesaid  arc  alt 
iiinorant ;  and  hereupon  thf  y  pray  the  advirc  of  the  C>)urt 
of  our  said  Ixjrd  the  Kint;,  J)efora  the  Kint;  hinwcif ;  and. 
if  upon  the  wliolr  matter  aforesaid,  it  ^•1^.^II  srcm  to  the 
.lid  Court,  that  the  said  C.  D.  is  guilty  of  the  trespn««! 
and  ( joctnicnt  aforesaid,  tlicn  the  jurors  aforewid,  upon 
th(  ir  oath  aforesaid,  say,  that  the  said  ('.  D.   is  guilty 
thereof,  in  manner  and  form  as  the  «iid  John  Dor  hath 
uithin  thcre<ifcoinplaint'(l  agaiu'-t  him  ;  and  in  thTit  case, 
they  assess  the  diunaf;cs  of  tiic  said  John  Doc,  on  orca- 
ion  of  the  trespass  and  ejectment  aforesaid,  besides  his 
costs  and  cliai'scs  by  him  about  his  suit  in  that  behalf  ex- 
pended, to  /.  and  for  those  costs  and  charges  to 
s.     Rut  if  upon  the  wholo  matter  aforesaid,  it 
shall  seem  to  the  said  Court,  that  the  said  C.  D.  is  not 
guilty  of  the  trespass  and  ejectnuiit  aforesaid,  then  the. 
jurors  aforesaid,  ujion  their  oath  aforesaid  say,  tijat  the 
said  C'  D.  is  not  guilty  thereof,  in  manner  and  form  as 
he  hath  m  ithin  in  pleading  alledred.     And  because,  ^r. 

Therefore  it  is  cunsidcrcJ,  that  tlie  said  John  Doe  do  re-  ^    *•    "^'y 
over  against  the  said  C.  D.  his  said  term  yet  to  come  of  : 
nd  in  the  tenements  aforesaid  with  the  appurtenances,  ; 
;ind  his  said  damages  to  /.  by  the  jurors  aforesaid 

in  form  aforesaid  assessed,  and  also  "  /,  for  his  said 
vosts  and  charges  by  the  Court  of  our  said  I,ord  tlie  king 
now  here  adjudged  of  increase  to  the  s.iiil  J.  B.  and  with 
his  assent,  which  said  liani.iges,  costs  and  charges,  in  thr 
\  hole,  amount  to  /.     And  let  the  said  C.  D.  be 

taken,  ^^c.  And  liereupon  the  said  John  Doe  prays  the 
>^  rit  of  our  said  1  ,ord  the  king  to  be  directetl  to  the  sherift 
of  the  county  of  aforesaid,  to  cause  him  to  havr 

possession  of  his  said  term  yet  to  cuuiii  of  and  in  the  U'ur- 
ment';  n foresaid  witii  the  appurtenances  ;  and  it  is  grant- 
ed to  him,  returnable  before  our  said  lord  the  kint'.  on 
wheresoever,  t^v. 
Cicri;e  the  Third,  iW.      in  the  ^h-ri-:  oi 
ing :  therefore  it  is  considered,  that  the  said  Jo'm  /' 
recover  against  the  said  C.  D.  Ub  said  term  yet  to  coii! 

of  and  in  the  said  parcel,  A'c  with  th"    - ; * 

nances,  and  the  damascs,  co^U  and  cUirgr 
by  the  jurors  aforesaid,  in  form  aforesaid  assessed,  and 
also  t'  fot-  his  taid  costs  ar.d  r'    i .         '      •]  r 

Court  of  our  s;iid  I.ord  the  lung  now  hrrc  ;       i     -  .- 


604  Precedents  in  Ejectment^  Si'e. 

crease  to  the  said  John  Doe,  and  with  his  assent ;  which 
said  damages,  costs  and  charges,  in  the  whole,  amount 
to  I.     And  let  tiie  said  John  Doe  be  amerced,  for 

Lis  false  claim  against  the  said  C.  D.  as  to  the  residue  of 
the  tenements  in  the  said  declaration  mentioned,  whereof 
the  said  C.  D.  is  acquitted  in  form  aforesaid  :  and  the  said 
C.  D.  go  thereof  without  day,  &c.  and  hereupon  the  said 
John  Doe  prays  the  writ,  &c.  {cis  in  the  last). 
„,^^"Xyi-  Whereas  A.  B.  lately  in  our  Court  before  us  at /Fesf- 

poiiei,ioi.em.  mnster,  by  hill  Avithout  our  writ  (o'-  ifb?/  original,  by  oui* 
writ),  and  by  the  judgment  of  the  same  Court,  recovered 
against  C.  D.  his  term  then  and  yet  to  come  of  and  in 
two  dwelling-houses,  &.c.  (««  in  the  declaration  in  eject- 
2n^nt),  with  the  appurtenances,  situate,  lying  and  being, 
in  the  parish  of  in  your  county,  which  E.  F.  on  the 

day  of  in  the  year  of  our  reign,  had 

demised  to  the  said  A.  B.  to  hold  the  same  to  the  said 
J.  B.  and  his  assigns,  from  the  day  of  then 

last  past,  for  and  during,  and  unto  the  full  end  and  term 
of  years  from  thence  next  ensuing,  and  fully  to  be 

complete  and  ended,  by  virtue  of  which  said  demise,  the 
said  A.  B.  entered  into  the  said  tenement  with  the  appur- 
tenances, and  was  possessed  thereof  until  the  said  C.  D. 
afterwards,  to  u  it,  on  the  day  of        in  the         year 

aforesaid,  with  force  and  arms,  &c.  entered  into  the  said 
tenements  with  the  appurtenances,  which  the  said  E.  F. 
had  demised  to  the  said  J.  B.  in  manner  and  for  the  term 
aforesaid,  which  was  not  then,  nor  is  yet,  expired,  and 
ejected  the  said  J.  B.  from  his  said  farm  ;  whereof  the 
said  C.  D.  is  convicted,  as  appears  to  us  of  record  :  there- 
fore we  command  you  that  without  delay  you  cause  the 
said  J.  B.  to  have  the  possession  of  his  said  term  yet  to 
come  of  and  in  the  tenements  aforesaid  with  the  appurte- 
nances ;  and  in  what  manner  you  shall  have  executed  this 
our  writ,  make  appear  to  us  at  Westminster,  on  next 
after         and  have  there  then  this  writ.     Witness,  Src, 

Note :     This  writ  must  be  engrossed  on  parchment. 
Make  a  precipe  for  the  office  thus : 

— —to  wit.     Writ  of  possession  for  A.  B.  on  the  de- 
mise of  E.  F.  against  C.  D.  for  a  messuage,  with  the  ap- 
purtenances, situate  at         in  the  county  of 
^  Returnable  [the  return], 
R.  R.  attorney. 

Note:     Carry  the  nrit  and  prcecipe  to  the  officer  who 
signs  the  writs  in  this  Court ;  pay  him  for  signing  the 


Preceihnls  in  Kjulminl,  <.w. 

sime  U.  Hd.  sualin^  at  llic  seal  ofUcc  Td.  the  sherijT's  war 
rant  IIk icon  2s.  -kl.  his  fee  for  executing  the  fuuic  is  li 
in  the  pound,  in  the  yearly  vaUic  of  the  premises,  if  the 
same  iloes  not  exiced    ICK)/.  per  artmon,  and  C,i.  in  the 
l>nuiKl  for  every  20s.  above,  and  Jv.  rctiiriiinvj  \Uc   uri*. 
OlUccr's  fee  executini;  writ  usually  II. 

ir  the  proceedings  are  l»y  ori^imdy  llic  writ  oj'  pu.cs- 
s^ion  (Uilfia  only  from  the  ahove  in  the  introiluctory  put, 
and  in  the  return.  It  ii  signed  by  the  idacer,  aiid  «eakd 
as  the  above  writ. 

6Vor/?*t' the  Thir<l,  «Sr.      io  ir   ^a>  i  ,,i  ui  y;.    ■ 

i!i;^:  whereas  .4.  /i.  lately  in  our  Court  before  us  at  /,'  . 
miiistc^r^  by  bill  williout  om-  writ  [or  6//  orij^inal,  by  our 
A\rit],  and  by  the  jad^mtnt  of  tJK*  said  Court,  r; covered 
a!j;iinst  C.  1).  Ills  term  then  and  yet  to  conic  of  and  in 
two  dwelling-houses,  t^v. [ns  in  Ihe  dcclarationin  rjcctmcnf] 
with  the  appurtenances,  sitiialr,  lyinu^  and  being,  in  tho 
})ari.4i  of  in  your  county,  which  7:.'.  l'\  on  the 

day  of  in  the  year  of  our  reign,  lioU  demised 

to  the  said  ./.  B.  to  hold  tlic  same  to  the  t^aitl  J.  li.  and 
his  assigns,  from  the  day  of  in  the 

year  aforesaid,  for  and  diirin^',  and  unto  the  full  end  and 
term  of  years,  from  thence  next  ensuing,  aud  fidly 

to  be  conjplctc  and  eailed  ;  and  also  his  term  then  and  yet 
to  come  of  and  in  two  other  'Iwehing.hotises,  A'r.  v.  it!i  ftie 
appurtenances,  which  6'.  /.'.  d  y  . 

in  the  year  aiVc-nid,  lua  demised  to  t!.  .  />, 

to  hold  the  sanjc  to  the  said  ./.  />.  and  hi;  _  •;>/)» 
the  day  of  in  the  ;■     :  aforesaid,  for 

and  during,  and  until  the  full  end  and  term  of  years 

from  thence  next  ensuing,  and  fully  to  be  cnnipletc  aud 
ended;  by  virtue  of  whicli  said  sever.d  demises,  the  Paid 
J.  B.  entered  into  the  said  several  tenements  with  the  ap- 
purtenances, and  was  po^^stssed  thereof,  uulil  the  Siiid 
C.  D.  afterwards,  to  wit,  on  tlie  day  of  ir' 

the  year  aforesaid,  with  forct  and  arms 

tered  into  the  said  several  tenements,  with  the  appuru 
nances,  which  the  said  A".  /".  and  (>'.  II.  hul  resp  ctivel\ 
demised  to  the  said  A.  B.  in  manner  and  for  the  several 
terms  aforesaid,  which  w.  re  not  then,  nor  are  yet,  expir- 
ed, and  cjectcil  the  said  J.  B.  frou)  his  sad  several  farnw  : 
whereof  the  said  C.  O.  is  cmvicled,  its  apjicars  to  us  of 
record:  therefore  we  command  you,  \hat  without  delay 
-ou  cause  the  said  -/.  B.  to  have  the  po?sesslon  of  his  sai.l 
-v"r;i'  1'  nn^  vrf  fr.onmi-  rf  rnd  In  the  -aid  sevrr^il  Ir-M 


'riie  like. 


(iOii  Frcccde}d3  in  Ejeclmcntf  SCc. 

nieuls,  with  tlie  appurtenances;  and  in  what  manner  you 
siiali  have  executed  tliis  o-.ir  writ,  make  appear  to  us  at 
iFcstminsler,  on  next  after  and  have  there 

then  Ibis  writ.  ¥/itness,  <??-<:•. 
-''f-  Gcorirc  the  Third,  JyV.  To  our  chancellor  of  our 
iy-i,aui;:ie.  oounty-palatinc  of  Lancaster,  or  to  his  deputy  there, 
greeting :  whereas,  ivc-  \/is  in  the  last  writ,. to  the  words 
"  as  appears  to  us  of  record,"  thc?i  as  foUoii's:\  therelore 
wc  command  you  that  by  onr  writ  under  the  seal  of 
our  said  county-palatine,  to  be  duly  made,  and  directed 
to  the  sheriii"  of  the  same  county,  you  command  the 
said  sheriii,  that  without  delay  he  cause  the  said  A.  B. 
to  have  the  possession  of  his  several  terms  aforesaid,  yet 
to  come  of  and  in  the  several  tenements  aforesaid,  with  tiie 
appurtenances ;  and  in  what  manner  the  said  sheriff  shall 
execute  our  said  writ,  let  him  certify  to  you,  so  that  yoii 
may  make. the  same  known  to  us  at  Westminster^  on 

next  after  and  have  there  then  this  wTit, 

.  Witness,  &c. 
rne'iiiU.^ino  r.^ri      Gsorgc  the  Third,  T^c.     To  the  sheriiT  of  greet- 

idaaiiorco.ts.  |j-^g. .  whereas,  v'icc.  [«s  in  tlie  \\^^^^t\:t  {Q.c\xis,  to  the  return 
daj/,  then  proceed  as  follows:']  we  also  command  you,  that 
of  the  goods  and  chattels  of  the  said  C.  D.  in  your 
bailiwick,   you  cause  to«  be  made  /.  which  the  said 

A.  B.  iateiy  in  our  said  Court  before  us  at  Westminster, 
(iforcsaid,  recovered  against  the  said  C.  D.  for  his  da- 
mages which  he  had  sustained,  as  well  on  occasion  of 
^hs  trespass  and  ejectment  aforesaid,  as  for  his  costs 
arid  charges  by  him  about  his  suit  in  that  behalf  expend- 
ed ;  whereof  the  said  C.  D.  is  also  convdcted,  as  appears 
to  us  of  record  ;  and  have  you  the  said  monies  before  us 
at  Ivcatininster,  on  the  return  day  aforesaid,  to  render  to 
the  said  A.  B.  for  his  damages  aforesaid  ;  and  have  there 
then  this  writ.  Vv^itncss,  c^'C. 
i\o.  XX.  Ocorc^e  the  Third,  ts:c.     To  the  sheriff  of  greet- 

i.i:i.-5  ari  >i;i.si;.ri-  j;-).>-  ■.    whcreas,    ^z.     [tts   in   the   habere    facias   posses- 

t-riJuin  jorcosU.  ... 

sionenij^o  the  return  dajj,  and  then  as  follows :]  we  also 
command  you,  that  you  take  the  said  C.  D.  if  he  shall 
be  found  in  your  bailiwick,  and  him  safely  keep,  so  that 
you  may  have  his  body  before  us  at  Westminster,  on  the 
return  day  aforesaid,  to  satisfy  the  said  A.  B.  L 

which  in  our  said  Court  before  us  at  WesLminster  afore- 
said,' \vere  adjudged  to  the  said  A.  B.  for  his  damages 
wJiicIi  lie  had  sustaini'd,  as  wcil  on  occasion  of  the  tres- 
pass   and    ejectment    aforesaid,    as    for    his    costs    and 


Prcecdrnfs'  ia  iji,  mu  nl,  .s<.  ,;(,7 

.-Jiarges  l)y  him  abotit  his  suit  in  that  luhalf  cxpcndcrl  , 
whereof  the  paid  (\  D.  is  also  coin  iitcd,  us  appciiru  to  Ub 
of  record;  and    liave   there    tlicn    tliis    writ.     Uitn<*« 
&c. 

■  to  wit,     A.    1).  coiunlains  of  C.  I)    !a  ,|I^  im  i,, 

custody  of  the  marshal  of  the  Mars/iatsta  of  our  Lord 
tlie  now  King  before  the  King  himself,  for  that  he  thr 
said  C.  D.  on  the  day  of  in  the  year  of  our  ; , ,, 

i^onl  \vith  force  and  arms,  A-r.  I)roJ;e  and  enteral 

messuages  [describing  the  pre  uiiscs  as  in  thr  dcrln- 
ration  in  ejectment]  with  the  aiJiJurtenancc?,  of  him  tiie 
fiaid  A.  B.  situate  and  beini;  in  the  parish  of  Ar.  in  the 
said  county  of  and  then  and  there  ejected  and  ex- 

pelled, put  out  and  removed  the  said  A.  li.  from  t!je 
possession,  use,  occupation  and  cnjoymcnl  tliercof,  for  a 
long  space  of  time,  to  wit,  for  tlie  space  of  then 

next  following:  and  during  all  that  time  there  took,  had 
and  received  to  his  own  use  all  the  rents,  issues  and  pro- 
fits of  the  said  tenements,  w  ith  the  appurtenances,  being 
of  a  large  yearly  value,  to  wit,  of  the  yearly  value  ef 
/.  By  reason  whereof  the  said  yl.  B.  for  and  dur- 
ing all  that  time  not  only  lost  and  wastlcprived  of  all  the 
profits,  benefit  and  advantage  of  the  tiiements  aforesaid, 
but  was  also  thereby  forced  and  obliged  to  lay  out  and 
expend,  and  did  necessarily  lay  out  and  cxptiid  a  lart^r 
sum  of  money,  to  wit,  the  sum  of  /.  in  and  about, 

recovering  and  obtaining  possession  of  his  tcncrnents 
aforesaid,  with  the  appurtenances,  to  wit,  at  the  pari-^^li 
aforesaiil  ;  and  other  wrongs  to  the  said  A.  U.  then  and 
there  did  against  the  peace  of  our  said  Lord  the  now  King, 
and  to  the  damage  of  the  said  A.  B.  of  /.  ;  and 

therefore  he  brings  his  suit,  &c. 

Til    ,        4  K   «       \John  Doe, 

Pledges  to  prosecute    jy.^^.,,,,/  y  > , 

to  wit.     C,  D.  late  of  in  the  couJily  o. 

yeoman,  was  attached  to  answer  A.  J!,  of  a  pic  i 
wherefore,  with    force  of  arms,   lie   broke  and  entered 

messuages,  ^<.c.  Mith  the  appurtenanccK,  in 
in  the  county  of  aforesaid,  and  expelled,  put  out 

and  removed  the  said  A.  U.  from  the  possession  and  oc- 
cupation of  his  said  tenements,  and  kept  ainl  conlinuul 
the  said  A.  B.  so  ejected,  expellc*!,  put  out  and  rcmovctl 
from  the  possession  and  occupalinn  of  the  simc  for  a 
long  space  of  time;    aud,  during  all  that  <imc,  thcrr 


60S  Precedents  in  Ejectment^  SCc. 

had  and  received  to  his  own  nse,  all  the  rents,  issues 
and  profits  of  the  said  tenements,  being  of  a  large  yearly 
value  ;  and  other  wrongs  to  the  said  A.  B.  there  did,  to 
tlie  great  damage  of  the  said  A,  B.  and  against  the  peace 
of  our  Sovereign  Lord  the  King,  Sec. ;  and  hereupon  the 
said  A.  B.  by  £.  F.  his  attorney,  complains  that  the  said 
C.  D.  on  the  day  of  in  the  year 

of  the  reign  of  his  present  Majesty,  w'lVa.  force  and  arms, 
broke  and  entered  the  said  tenements,  Src.  with  the  appur- 
tenances, in  aforesaid,  in  the  said  county  of 
and  ejected,  expeiJed,  put  out  and  removed  the 
said  A.  B.  from  the  possession  and  occupation  of  his  said 
tenements,  and  kept  and  continued  the  said  A.  B.  so 
ejected,  expelled,  put  out  and  removed  from  the  pos- 
session and  occupation  of  the  same,  for  a  long  space  of  time ; 
that  is  to  say,  from  the  said  day  of 

in  the  year  aforesaid,  until  the  day  of  suing 

out  the  original  writ  of  the  said  A.  B.  ;  and,  during  all 
/hat  time,  there  had  and  received  to  his  own  use,  all  the 
rents,  issues  and  profits  of  the  said  tenements,  being  of 
a  large  yearly  value,  to  wit,  of  the  yearly  value  of 

Z. ;  and  other  wrongs  to  the  said  A.  B.  then  and  there 
did  to  the  great  damage  of  the  said  A.  B.  and  against  the 
peace  of  our  said. Sovereign  Lord  the  King:  wherefore 
the  said  A.  B.  says  that  he  is  injured,  and  hath  sustained 
damage  to  the  value  of  fifty  pounds;  and  therefore  he 
brings  suit,  t^c. 
rieas°tii«^td['  ^^^^  ^^6  ^^^*^  C  D.  by  G.  IL  his  attorney,  comes  and 

rfis'Noifuiity't^efends  the  force  and  injury  wlien,  &c.  and  says,  that 
litainsixyc  r^.  j^^  -^  ^^^  guilty  of  tli8  supposcd  trcspass  above  laid  to  his 
charge,  in  manner  and  form  as  the  said  A.  B.  hath  above 
thereof  complained  against  him ;  and  of  this  he  puts 
Jiimself  upon  the  country,  and  the  said  C.  D.  doth  the 
like.  And  for  a  further  plea  in  this  behalf,  the  said 
C.  D.  by  leave  of  the  Court  here,  for  this  purpose  had 
and  obtained,  according  to  the  form  of  the  statute  in 
such  case  made  and  provided,  says,  that  the  said  A.  B. 
ought  not  to  have  his  aforesaid  action  thereof  against  him ; 
because  he  says  that  he  was  not  guilty  of  the  supposed 
trespass  aforesaid,  above  laid  to  his  charge,  at  any  time 
within  six  years  next  before  the  day  of  exhibiting  the  bill 
[or  suing  out  the  original  writ]  of  the  said  A.  B.  against 
the  said  C.  D.  in  the  manner  and  form  as  the  said  1.  B. 
hath  above  thereof  complained  against   him   the    said 


7^rir(d(iifs   in   Hjtrlmcnl,  iS'< 


'ju:» 


f '.  D. :  and  this  lie  the  sai<l  ('.  J),  is  ready  to  verily  ; 
Mlierefi)rc  he  prays  judi^uunt  if  tlic  paiil  ./.  //.  ou:jht  to 
have  his  aforesaid  action  thereof,  aj^aiiist  liim,AV. 

('.  ]{. 
And  the  paid  J.  IK  as  to  the  ^.u(l  pici  c.r  ih.-  -ai«l  C  J).  .. '*?  wi^- 
by  him  lastly  above  pleaded  in  bar,  «aye,  t  Jiat  he,  l>y  rea"-on  '"*'' 
of  any  thing  by  the  said  C.  J),  in  that  plea  allcdgcd,  otitht 
not  to  I)e  l)arred  from  liavin;:;  )m  aforesaid  action  thereof 
against  liim;  l)ecaiise  lie  saifh  tliat  the  sanl  ('.  D.  was 
guilty  of  the  trespass  aforesaid,  above  laid  to  hisdiarge, 
within  six  years  next  before  the  day  of  exhibiting  the  l)ill 
[or  suing  out  the  original  writ  of  tiic  said  C  D.  against  tic 
said  C  D.  in  manner  and  form  as  lie  the  said  A.  U.  hath 
thereof  complained  against  him  tlie  said  C.  D.  and  this  he 
the  said  ^.  B.  prays  may  be  enquired  of  by  the  country  : 
^\m\  the  said  C.  7).  doth  the  like,  <Sr. 


INDEX. 


»<>o«^^<;y>«. 


il-CTION, 

of  debt,  where  the  lease  is  by  deed,  313. 

the  declaration,  316. 

the  pleas,  ^n). 
of  debt  on  bond  for  performance  of  covenants,  335. 
of  covenaat  for  rent,  where  the  lease  is  by  deed,  ib. 

the  declaration,  338. 

the  pleas,  341. 
of  debt  for  use  and  occupation,  345. 
of  debt  for  double  value,  il' 
double  rent,  346. 

the  pleas,  34^. 
of  assumpsit,  for  use  and  occupation,  ie. 

the  picas,  352. 
of  ejectment,  354. 

where  it  lies,  ih. 

its  history,  355. 

ancient  practice,  il>. 

modern  practice,  356. 

who  may  have  it,  358. 

for  what  thmgs  it  lies,  367. 

of  this  action,  vyiicn  the  tenant  is  io  possession,  ,, :  \ 

of  amending  tht  de<l<traiion,  377. 

of  serving  declaration,  379, 

affidavit  of  service,  38*. 

moving  for  judgment.  il\ 

who  may  defend  it,  384. 
the  tenant,  it. 
the  landlord,  385. 
:i  thiid  person,  3S-. 

consolidation  rule.  //'. 

appearance,  //'. 

Slaying  prcctedings,  ^£9. 


€12  liSDEX. 

ACTION, 

of  the  pleas  and  issue,  392. 

death  of  plainciff,  395, 
defendant,  ib. 
either  party,  ib. 
of  the  evidence,  395. 

witnesses,  403. 
verdict,  406- 
judgment,  407. 
damages,  408. 
costs,  409. 
execution,  410. 
writ  of  error,  413. 
of  this  action,  where  the  possession  is  vacant,  415. 
where  brought  against  a  corporation,  4 16. 
where  brought  la  an  inferior  court,  417. 
for  mesne  profits,  418- 
second  action  ot  ejectment,  4»z. 
action  of  ejectment  on  the  stat.  4  G.  ».  c.  a8,  4*4. 
action  ot  covenant  for  want  of  repairs,  &c.,  431. 
assumpsit  tor  breach  of  covenants,  443. 
actioii  of  waste,  446. 

writ  of  estrepement,  447. 

of  waste,  448. 
who  shall  have  waste,  and  against  whom  it  lies,  449. 
the  pioceedings,  450. 
declaration  and  pleas,  452. 
judgment,  455. 
trover  for  waste,  ib. 

action  upon  the  case  in  the  nature  of  waste,  456. 
action  by  landlord  for  nuisances,  461. 
where  it  lies,  ib. 

deciaiation,  463. 
pleas,  &c.  464. 
action  against  sheriff  for  removing  goods  under  an  execution,  465. 
action  of  replevin,  473. 

who  may  have,  ib- 

against  whom,  and  for  what,  475. 
the  several  kinds  of,  ib. 
out  of  what  Courts  replevin  issues,  476. 
of  the  pledges,  478. 

how  to  be  made  in  cases  of  distress  for  rent,  479. 
of  the  writs,  480. 

of  second  deliverance,  481. 
de  proprietate  probanda^  483. 
de  retorno  habendot  484. 
returns  irreplevisable,/'^, 
modes  of  executing  processes,  ib. 
of  the  declaration,  485. 
picas,  486. 


iNor.x.  <)l  i 

ACTION, 

of  removino:  the  «uit  fmm  county  court,  487. 
ot  comi  fllioji  pat  y  to  ;  loccc.!,  ^:-y,. 
ot  avuwries    489. 

for  rrnt,  490. 
for  ca'ilr.   19^1. 
of 'he  Vf  r<1ici  and  ju  Ipmcnf,  498. 
of  thf  n-'o  luo',  non  «uit,  &c.  when  disrreit  is  fjr  rent, 

undrrstat.  17  Cjr.  1.  500 
of  tlic  remcdiis  wheit:  (he  plei1i»e<  are  insulluicnt,  504. 
bv  aci><>n  a   ainsi  «hcrifl',  ib 
by  sc'ne  fciciuj  a»'»inst  plcdf^es,  fcj. 
on  leiilcvm  bond,  ^o^. 
action  of  covenant  (.r  a^^^iunipsit  by  tenant,  517. 
acti  .n  ot  trc'pasi  by  tenan',  ^zi. 
action  on  the  case  by  tenant,  sT)%. 

Agreement, 

to  leas  •  amoontinp  to  a  prosent  Henvse,  ao. 

no'  tn  ni-n  (-ui  tenani  vihilt  he  complies  *itli  certain  conditions,  ai. 
to  'ea-c  by  "ean  and  chapter,  sipred  by  dean  only,  good,  ib. 
to  ''a"5e  hy  three,  exrcuted  by  one,  ai. 
parol  at'irpoTiirs.  ib. 
of  pan  pf  fill  mar  cf,  44. 
of  the  lemtd    >^  un  'er  agreements, 
in  cqu  'V    24. 
at  law,  17. 

by  covenant,  i8. 
assumpsit,  il>. 

Assignment.     See  Mortgage. 

Its  (laturc,  h  iw  maiie.and  whatthin;?s  are  assipjnable,  175. 
assik/nees,  how  tai  liable  un  ler  covenants    &c.  177. 
what  cuvenaiits,  &c.they  may  take  advantage  of,  284. 

Assumpsit.     See  /ktion. 

Attornmkst, 

na'ute  and  use  of,  154. 

B4NKIUJPr, 

of  the  changes  happening  by  bankruptcy  of  the  tenant,  19;. 

Bond, 

for  performance  of  covenants,  353. 

CASE.     See  Action. 

Chukch 

liability  to  repair,  and  right  to  pews,  5;  7. 

Common, 

of  estvof'.  jjX. 

Conditions,     ji-    Ltaie. 

nature  of,  and  how  they  differ  fron  coveoants,  14 7* 

7'.) 


(514  IKDEX. 

Conditions. 

not  to  assicn,  a6i« 
of  re-entry,  267. 

Confirmation, 

of  leases, 

by  issue  in  tail,  34,  469. 
by  ri-maindetmari  and  reversioner,  41,  44, 
by  wife,  afrer  l^u^band's  death,  75,  76. 
by  bishops,  patrons,  &c.  71. 

Copyholds. 

lease  by  husl>and  of  wife's  copyhold,  76. 

by  infant  without  license,  88. 
licence  to  let,  85. 

lessee  may  assign,  &c.  without  further  licence,  Sj. 

if  made  on  condition  void,/^. 
lease  may  afFect  widow's  freebench,  ib. 
right  of  copyholder  to  cut  down  wood,  z^S' 

Corporations.     Sqq  Lease. 

what  acts  they  may  do  by  deed,  or  without,  65, 
of  the  acts  of  their  bailiffs,  stewards.  Sic.  64. 
by  what  names  they  may  take  or  grant,  66. 
other  properties  of  corporations,  iL 

Covenants.     See  Assignment  and  Action^ 

nature  of,  343' 

in  what  cases  implied,  ih. 

forquiet  enjoyment, /(5, 
to  cultivate  land,  244. 
to  repair,  ib, 
to  pay  rent,  245. 
express  covenants,  246. 

nature  of,  and  how  they  difFer  from  conditions,  147. 
for  qujtt  cpjovment,  249' 
for  payment  of  rent,  45 2" 

oftaxts   254. 
to  cultivate  the  land,  255. 
to  repair  an!  yield  up  possession,  256. 
to  reri'^e  on  the  premises,  159. 
not  to  permit  certain  trades  to  be  carried  on,  a6«. 
rot  to  asf;gn,  ib. 
to  injure,  265. 
covenants,  how  to  he  construed,  Sec  ih  436. 

how  afFectr.i  by  Vets  of  Pailiami-nt,  272. 
secure    !  y  prnal'y  ib, 
in  assignmenis,  277* 


INDEX.  615 

DATE, 

of  lease,  117, 

Dfcur.     Sec  Actior:, 

DtTlSE, 

to  executors  to  pay  debts,  a  chattel  interest,  11 1. 

of  'easf  hoM  interests,  11^6. 

rights  snd  interests  of  devisees  of  leaseholds,  a^;. 

Distress, 

it?  nature,  and  when  it  lies,  304. 

by  "vhom  it  may  be  made,  .105. 

of  wliat  tilings  it  may  be  made,  308. 

when,  where  and  how.  it  should  be  made,  U4- 

how  it  should  he  dispored  of,  318- 

lanrllord's  remedy  fur  goods  Iraudulently  removed,  469. 

remedies  (or  irretiular  distress,  507. 

for  rrnt  pretended  to  be  in  arrear,  508. 

for  otiier  supposed  ripiu  to  distram,  509. 

trover  foi  irregular  distress,  514. 

trespass  for  same,  5  i  ?. 
di'tressfor  damage-feasant,  and  rescous,  510. 

EJECTME^'^.     See  /?c//:/;. 

where  husband  and  wife  leased  by  attorney,  7 ?. 

Emblements, 

what, ard  who  shall  have,  137. 

EST0PP^L, 

in  whatca«!es  leases  enure  by  way  of  estoppel,  f;,f. 
where  lease  is  made  by  tcnani  at  will,  8  j. 
by  mortgagor,  S5. 

ExFCUTfON.     See  j^cfion. 

ExtCUTO^S   AND    '  DMINISTRATORS, 

of  their  ri^'hts  and  intetcst,  an  1  what  actions  they  may  maintain,  or 
art  liable  to,  3R9. 

FEME  COVER  T.    See  I/ui!>ur:d  and  If'ifr. 

FlNFS, 

on  renewal  of  lease?,  151. 

FiXTLRF?, 

what  mav,  and  w' at  may  not  be  removed,  117- 

as  between  landlord  and  tenant,   /'■.  no — 114- 

icnau  lor  life,  or  in  t^il,  and  rcmainicr-man.  : :  i 

Forcible  Entry, 

uhal,  53/. 


616  INDEX. 

Forcible  Entry, 

how  punishable,  537. 

by  action, 537. 

at  the  sessions,  j^S* 

by  a  justice,  ib. 

by  a  certiorari,  54Z. 

as  a  riot,   543. 
Forfeiture.     Sec  Lease. 

GOODS, 

schedule  of,  and  covenant  to  re-deliver,  a6o.  > 

HUSBAiND  AND  WIFE, 

husband  mav  dispose  of  wife's  term,  77,  78,189. 
of  the  alteration  of  interests,  '  c.  ib. 

produced  by  marriage,  189. 
INFANT.     See  Lease. 
Insolvency, 

oF  the  chanj^es  happening  by  insolvency  of  tenant,  196. 

JOINT-TENANl  S.     See  Lease. 

LEASE. 

what,  I. 

antiquity  of,  i — 3. 

requisites  to  a  good  lease,  4. 

operative  words,  ib. 

what  shall  amount  to  a  present  demise,  ih. 

of  leases  hy  deed,  8. 

by  writing  without  deed>  13. 
by  parol  demise,  14. 
of  leases  by  tenant  in  fee,  34. 
in  tail, /3. 

under  the  enabling  stslutes,  37. 

in  tail  after  possibility>  41. 
for  life,  ib. 
pour  autre  vis.,  43. 

by  the  courtesv,  in  dower  or  jointure,  ib. 
persons  authorized  by  powers,  44. 
the  requisites  to  such  lease, 

with  respect  to  the  lessor,  45. 
to  the  lessee,  ib. 
to  tl^e  subject  of  the  lease,  46. 
to  the  qoality  and  quantity  of  interestj^j. 
to  the  rent,  54. 
to  the  form  of  the  lease,  60. 
tenants  for  years,  6». 

from  year  to  year,  Of  a  less  term;  ib. 
corporations,  63. 


INDF-X.  (J  17 

LEASE. 

ecclesiaitical  pcr»oni,  67. 

at  ihc  common  law.  ih.  71, 
un<lcr  ilie  italutci,  ib. 
trustees  of  ctiaritiri,  7?. 
married  women  anditxir  I  usbands,  -'■. 
of  coi)vh"lfJi.  76.  87. 
uii.  cr  ihe  suiutci,  77. 
infants,  79. 
guardians,  80. 

in  tricz<yr,ih.  76. 
tesfan>'*nui  v«  81. 
bynuiture  ih. 
executors  an  \  administrators,  8». 
mortKa|j'>rs  and  mtiriRaRces, /^.  . 
tenants  by  ^/cjf/V,  Stc.  85. 
copyholdtts,//'. 

joint  tenants*  co  parceners,  and  tenants  in  common,  89. 
aitornies,  a^ients,  &c.  92. 

shou-.l  We  made  in  tlie  name  of  the  princip.*!,  ih. 
to  whora  leases  can.  or  cann'  t  K  •  mat^e,  9?. 
spuMual  persons  unJcr  stauiie,/^. 
infar.'s    96 
f.;.Ksc(<vert,  97. 
aliens,  ih. 
demzens),  99. 
of  what  thinj-'s  lease  may  be  made,  100. 
corporeal  hereditaments,  lot. 

what  willpassunderccrtaindeictiptions,  ici. 
incurporeal  hertciitaments,  loj. 
aclvuw5onSi  104* 
tith:.'.,  ih. 
tolls,  105. 
estovers,  ib. 
commons,  ih. 
wavs,  ih. 
Otliccs,/^. 
frarcliises,  ic6. 
corrodies  and  pensions,  //•. 
anr.uiti:  s  and  rents,  IC7. 
(or  what  terms  leases  may  be  made.  1 1  o. 
•for  life,  th.  •     , 

for  years,  1 14> 

comminccmeni,  ih.  159. 
itifsretse  tcrrninit  laj,  159- 
duration,  1:4- 


61» 

LEASE. 


fifDEX, 


termiaationt  131. 

by  effluxion  of  time,  134. 

merger,  ib. 

surrender,  134. 

cancellation,  149. 

condition  or  proviso,  150. 

forfeiture,  ib. 
of  leases  in  reversion,  153. 

Livery, 

nature  of,  and  when  requisite,  iii. 

LODGI  NGS, 

how  let,  and  what  notice  requisite,  177. 
how  far  lodgers  are  householders,  178. 

MERGER.     See  Lease. 

Mortgage, 

of  leases  by  way  of  mortgage,  i6r. 

interests  of  mortgat'or  and  mortgagee,  and  in  what  relations  they 

stand  with  respect  to  tenancy,  &c.  83. 
what  actions  they  may  maintain  under  covenants  in  leases,  84. 
what  covenants  mortgagee  of  lease  is  liable  to,  ib.  187. 

NOMINE  POEN^, 

for  non-payment  of  rent,  ploughing,  &c.  t^^i  270. 

Notice, 

to  quit,  164. 

is  governed  by  the  letting,  167, 177. 
*  and  by  custom,  ib. 

where  landlord  is  ignorant  of  the  commencement  of  the  tenancy,  169. 
must  he  clear  and  certain,  17a. 
waiver  of,  173. 

in  what  cases  unnecessary,  175,  182. 
to  quit  lodgings,  177. 

Nuisances.     St&  Action. 

PARTY  WALLS, 

who  are  liable  to  bear  the  expense  of,  199. 

Poor's  Rates, 

acts  relating  to,  aot.  *     *  ' 

who  are  rateable  to,  and  in  respect  of  what  things,  403. 

how  to  be  made  and  raised,  109. 

when  to  be  collected,  a  10. 

distress  for,  an. 

the  appeal  from,  a  16. 


LN'DBX.  610 

PowiR.     See  Liast. 

devise  that  a  person  mav  set  and  (et,  (^ives  a  hare  authority  onlv.  la. 

to  lease  insertint{  usuul  covenants  ;  an  unusual  covcDaolufoidf 
the  whole,  i74. 

Premises.     See  Ltan. 

of  corporeal  hcrc^lifaments,  loi. 

what  will  pass  under  particular  denominations  and  descriptinn*,  i    :. 

of  incorporeal  hereditaments,  loj. 

REGISTRY, 

acts  rtq'iirinp  Heeds  to  be  r^ftisicrcd,  ij,  i6. 

what  leases  they  extend  to,  i6. 

effect  of  reftistrv,  17,  19. 

of  the  nicnxirial,  18. 

of  registry  by  representative  of  a  deceased  party,  /3« 

Renewal 

of  leases,  143. 

covt  nam  10  renew,  on  failing  in  of  one  life,  66. 

of  lease  by  guardian,  %■>.. 

by  one  jjintly  interested  with  an  infant,  97. 
tenant,  right  of  renewal,  148. 

Rent, 

reserved  to  one  joint-tenant  enures  to  both,  90. 

recoveraMe  by  executors  ot  tenant  for  life,  under  stat.  11  G.i.  91. 

different  kinds  of,  107. 

how  to  be  leserved,  and  to  whom  it  shall  go,  i84. 

how  payable,  190.  ^ 

apportionment  ot,  191. 

when  due,  197. 

Repairs.     Sec  Covenant  and  Action. 

Replevin.     See  Action. 

SHERIFF.     See  Action. 

Stamps, 

to  leases  and  aprcementj,  31. 

tooiie  instru  iieni,  comaiiimg  several  demises,  j*. 

under  the  .ict  of  48  G.  3.  c.  1^9.  i!>. 

Statutes,     •      a     ^      .  • 

"n^^Miy  H  /- *>.|n.\^»jn^  t>-mnf|X-)f  life.  Sic.brvonH  sea,  1 1  j. 
6    i'ln  c.  18.  respec'in>?  u'tn:  iia ff  ^.  c»ticea!invj  ioLnt^,  5tc.  114. 
II  G.  a.  c.  iQ.  giving  remedy  tj  lacdlord  where  the  premises  arc  va- 
cant, 429. 

Surrender.     See  Lease. 

TAXES, 

by  whom  payable,  197. 


620  INDEX. 

Tenancy.     See  Lease^ 
for  life,  no« 
for  vesfs,  ii6. 
from  Vf  sr  to  year,  163. 
for  a  Ies5  term,  177. 
at  w  11.  iSo. 
at  suffcfance,  183. 

Terms   for  Years.     See  Lease. 
narut'e  of,  fi6. 
only  chattel  inserests,  117. 
may  '  e  intailfd,  ib. 

na  ure  of  lessee's  interest  in  term  before  entry}  143. 
of  terms  in  tiustor  in  gross,  160. 

Tithes.     S^f"  Lease. 

notice  to  qut  requisite,  167,  17*. 

Trespass.     See  Action. 

Trover.     See  Action  and  Distress. 

UNDERLEASE, 

how  ltd  flFers  from  an  assignment,  487. 

Use    and   Occupation.     See  Action. 
infifits  iiabk  for,97. 

WAS  TE.     See  Action. 

w!"'a'  is,  417,  428. 

remedies  in  equity  for  waste,  45  S* 

Way, 

reme'lies  for  obstruction  of  a  rightof  way,  544. 

Will.     See  Devise, 


THE  EXD. 


ISAAC  A.  KOLLOCK,  Printer,  ( 
Elizabtth-To-wn,  New-Jersey.      S 


lAW  LIBRARY 

T  tNnrrS^V  OF  CALIFORNIA 


1 


AA    ') 


^^ 


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